Oral Judgment:
Heard Shri A.D. Bhobe, learned Counsel appearing for the petitioners. None for the respondents though served.
2. Rule heard forthwith. The notice issued to the respondents was for disposal of the above petition at the stage of admission.
3. The above petition challenges an order passed by the learned Civil Judge Junior Division at Margao dated 22/08/2012 whereby an application for amendment filed by the petitioners came to be rejected.
4. Briefly, the facts as submitted by Shri A.D. Bhobe, learned Counsel appearing for the petitioners are that the petitioners filed the suit for declaration and permanent injunction with regard to the structure located in the property of the petitioners.
5. The respondent no.1 in his written statement disputed the claim of the petitioners and inter alia claimed that he is the mundkar of the disputed premises. It is further contended that before the affidavit evidence was filed in the Court the petitioners filed an application for amendment to inter alia disclose the flow of their right to the disputed premises in the suit property. It is further the contention of Shri A.D. Bhobe, learned Counsel that amendment is only clarificatory and in no way changes the nature of the suit. The learned Counsel has also taken me through the impugned order and pointed out that the learned Judge has erroneously dismissed the application on the ground that trial had already started when according to him the trial had not yet begun and, as such, the question of showing any due diligence as observed by the learned Judge in the impugned order is not justified. The learned Counsel, as such, submits that the impugned order be quashed and set aside.
6. The respondents though served failed to remain present. In fact, the matter was adjourned on some occasions to give an opportunity to the respondents to appear in the above petition. But however, none appeared for the respondents at the time of the hearing of the above petition.
7. I have considered the submissions of the learned Counsel appearing for the petitioners and I have also gone through the records. On perusal of the petition filed by the petitioners at para 4 of page 9, there is a specific averment that the issues were framed on 2/07/2008 and the matter was thereafter fixed for petitioners' evidence and that the petitioners have not filed affidavit in evidence as of date. These averments in the petition have not been disputed by the respondents as they failed to remain present when the above Writ Petition was taken up for hearing. It is now well settled that trial commences only after affidavit in evidence is filed in the suit. Considering that no such affidavit was filed in the suit by the petitioners/plaintiffs the learned Judge was not justified to come to the conclusion that the petitioners had to establish due diligence within the proviso to Order 6 Rule 17 of the Civil Procedure Code. As such, the amendment application filed by the petitioners is to be considered as a pretrial application for amendment and, as such, the question of showing any due diligence would not arise.
8. The Apex Court in the judgment dated 27.09.2012 in Civil Appeal no. 7043 of 2012 in the case of Abdul Rehman and Anr vs. Mohd. Ruldu and Ors., after considering the amendment to Order 6 Rule 17 of the Civil Procedure Code, has observed at paras 7, 8 and 15, thus:
â7) It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8) The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment. (emphasis supplied).
15) We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.
9. Considering the ratio laid down by the Apex Court in the said judgment, the Court has to take a liberal view in allowing application for amendment which are filed prior to the commencement of the trial which are necessary to decide the matter in controversy. In the present case, the proposed amendment is referred to the dispute and to the averments made by the petitioners in the plaint and, as such, I find that the learned Judge was not justified to pass the impugned order refusing leave to the petitioners to amend the plaint.
10. Considering that the application was filed by the petitioners after considerable time since the filing of the suit I find that the respondent no.1 who is the contesting the suit is liable to be compensated with costs. Such costs are quantified at Rs.3000/- to be paid by the petitioners to respondent no.1 as condition precedent.
11. In view of the above, I pass the following order:
ORDER
(i) The impugned order dated 22/08/2012 passed by the learned Civil Judge Junior Division at Margao is quashed and set aside.
(ii) The application filed by the petitioners dated 13/07/2012 for leave to amend the plaint is allowed subject to payment of costs of Rs.3,000/- as condition precedent to respondent no.1.
(iii) Needless to say the respondents/defendants are entitled to file additional written statement after being served with the copy of the amended plaint.
(iv) Rule is made absolute in the above terms.
(v) The petition stands disposed of accordingly.
(vi) Amendment to be carried out within two weeks.