It is well established
principle that the Court should allow all amendments that would be
necessary for determining the real question in controversy between the
parties. Merely because the party fails to include certain facts in the
original pleadings and files an application subsequently for including
those facts, the application cannot be rejected solely on the ground that
the applicant was well aware of the facts proposed to be brought on
record by way of amendment and ought to have pleaded the same in the
original pleadings. What is prohibited by way of an amendment is only
to alter cause of action in the suit or to introduce an entirely new or
inconsistent cause of action which would virtually amount to substitution
of a new plaint or new cause of action in the place of the original plaint.
In fact the very provision of Order 6 Rule 17 is to ensure that the parties
get an opportunity to place on record all the relevant facts in their
pleadings so as to promote the ends of justice and not defeat it. For that
purpose however, the factors that have been enumerated above must be
taken into consideration. The application of the petitioners is required to
be considered against the backdrop of the above legal position.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.108 OF 2013
Shri Prabhakar Xembu Bhandari,
Versus
The State Of Goa,
CORAM : SMT. R.P. SONDURBALDOTA, J.
DATE : 2nd MAY, 2013
Citation;2013(6) MHLJ440
Rule. Made returnable forthwith. By consent of parties the
petition is taken on board for final hearing.
2. The petitioners are the plaintiffs in Civil Suit No.78/2011 wherein
4
they had filed an application for amendment of the plaint. That
application was rejected by the trial court vide its order dated 7th January,
2013. The present petition is directed against that order.
3. In their suit the petitioners have sought five permanent reliefs out
of which three are for declarations and others for permanent injunctions.
The first declaration sought is that the petitioners have an easementary
right of access over survey no.26/2 which is being objected to by
respondents no.10 & 11, its present owners. The second declaration
sought is that the land at survey no.26/2 consists of hilly area with a steep
slope and not within the permissible gradient for development and that
“Divzam Fator” “Sati Shila” stones cannot be permitted to be destroyed,
since they are of sentimental value and historical importance. The third
declaration sought is that approval if any obtained by respondents no.10
& 11 from various authorities for sub-division of survey no.26/2 is illegal,
null and void. The reliefs of permanent injunctions are (i) to restrain
respondents no.10 & 11 from interfering with the suit access; (ii) from
carrying out any development activities in the hilly portion of survey
no.26/2 and (iii) destroying or shifting or tampering with “Divzam Fator”
“Sati Shila”. The sixth relief sought is of direction to respondents no.12
& 13 who are the Director, Archives and Archeological Department of
5
Goa and Superintendent Archeologist, Archeological Survey of India to
recognise “Divzam Fator” “Sati Shila” as of archaeological importance.
4. The case set out in the plaint by the petitioners, stated in brief is
that petitioner no.1 belongs to Kshatriya Bhandari caste. His family had
the house located at survey no.26/3. After the fall of Maratha empire his
family and other families residing on the property left the village and
settled elsewhere in Goa. Petitioner no.1 learnt from his ancestors that
widows of martial soldiers used to do “atmadahan” by jumping into the
pyre on the death of their husband at the place of “Sati Shila” and women
from his family and others of the same caste used to celebrate divzam at
“Divzam Fator”. There is also a shrine of Shree Bhandari Kulpurush on
the property at survey no.26/3 the access for which has been the suit
access.
5. The petitioners further allege in the plaint that the entire property
had originally belonged to the ancestor of one Mota Naik Gaunekar and
Vinayak Naik Gaunekar. There has been partition of the property in
which the land at survey no.26/2 came to be allotted to the family of
Vinayak Naik Gaunekar. The present owners of the property are
respondents no.10 & 11 who desire to develop the property purchased by
6
them. According to the petitioners the suit access is a cart road with the
width of 6 meters which has been used by them since their marriage,
initially by plying bullock-carts over it and for the last twenty years by
running motor vehicles.
6. At para 2 of the plaint the petitioners make it clear that the suit has
been filed by them in individual capacity. Therefore, the averments made
in the plaint and the reliefs sought therein will have to be appreciated and
considered from the perspective of the petitioners individual and personal
rights. Petitioner no.1 has also filed another suit representing “Shree
Bhandari Kulpurush Dev Saunsthan” in the capacity of its president along
with three others which is pending in the court of Civil Judge, Ponda.
7. The petitioners had taken out an application for interim reliefs to
restrain respondents no.10 & 11 inter alia from developing the land at
survey no.26/2. The trial Court by its order dated 22nd March, 2012
dismissed the application and allowed the application for temporary
injunction filed by respondents no.10 & 11. The petitioners had preferred
Appeal from Order no.28/2012 against the order of the trial Court
dismissing the application for interim reliefs. The appeal was disposed
off by this Court by its order dated 31st August, 2012, recording statement
7
of respondents no.10 & 11 that they would maintain status quo in respect
of the stone “Divzam Fator” and maintain the access shown in the
original No Objection Certificate dated 25th May, 2011 issued by the
Town and Country Planning Department, Ponda, Goa with the width of
access as 6 metres. While dismissing the Appeal from Order of the
petitioners this Court observed that the claim made by the petitioners in
the plaint is vague and without necessary particulars. The petitioners then
filed an application for amendment of the plaint to add eight paragraphs
and the relief at prayer clause 'AA' for a mandatory order directing
respondents no.10 & 11 to remove the encroachment made by them by
way of erection of barbed wire fencing on plot D2 belonging to the
petitioners forming part of the property of survey no.26/3. The
petitioners allege that on 14th July, 2012 respondents no.10 & 11 put a
barbed wire fencing which extends into plot no.D2 thereby committing
act of encroachment.
8. Respondents no.10 & 11 opposed the application for amendments
on several grounds. According to them the amendments sought were
more in the nature of evidence and arguments than the relevant facts. The
amendments proposed were not necessary for the purpose of deciding the
issue between the parties. Further the proposed amendments changed the
8
nature of the suit by bringing in a boundary dispute.
9. Before touching the rival contentions on the merits of the
application for amendments it would be convenient to take note of the
legal submissions advanced by both the sides and the citations relied
upon by them. Ms. Agni, the learned Counsel for the petitioner submits
that an application for amendment of the plaint is not to be refused on
technical grounds since the rules of procedure are intended to be a
handmaid to the administration of justice and the Court should always
give leave to amend the pleadings of a party unless it is satisfied that the
party applying was acting mala fide or that by his blunder, he has caused
injury to his opponent which may not be compensated for by an order of
costs. In support of her submissions she relies upon the decision of the
Apex Court in the case of Jai Jai Ram Manohar Lal V/s. National
Building Material Supply, Gurgaon reported in AIR 1969 SC 1267. The
observations relied upon by her from the decision read as under :
“Rules of procedure are intended to be a
handmaid to the administration of justice. A
party cannot be refused just relief merely
because of some mistake, negligence,
inadvertence or even infraction of the rules of
procedure. The Court always gives leave to
amend the pleading of a party, unless it is
satisfied that the party applying was acting mala
fide, or that by his blunder, he had caused injury
9
to his opponent which may not be compensated
for by an order of costs. However, negligent or
careless may have been the first omission, and,
however, late the proposed amendment, the
amendment may be allowed if it can be made
without injustice to the other side.”
For the same submission she also relies upon another decision of
the Apex Court in the case of M/s. Ganesh Trading Co. V/s. Moji Ram
reported in AIR 1978 SC 484.
10. Two more decisions of the Apex Court cited by her are in the case
of Rajesh Kumar Aggarwal & Ors. V/s. K.K. Modi & Ors. reported in
(2006) 4 SCC 385 and in the case of Rameshkumar Agarwal V/s.
Rajmala Exports Private Limited & Ors. reported in (2012) 5 SCC 337,
on the approach of the Court in considering application for amendment.
The relevant observations from the decision in Rajesh Kumar's case
(supra) read as follows:
“15. 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.
16. Order VI Rule 17 consist of two parts.
Whereas the first part is discretionary (may) and
leaves it to the Court to order amendment of
pleading. The second part is imperative (shall)
10
and enjoins the Court to allow all amendments
which are necessary for the purpose of
determining the real question in controversy
between the parties.
18. As discussed above, the real controversy
test is the basic or cardinal test and it is the
primary duty of the Court to decide whether
such an amendment is necessary to decide the
real dispute between the parties. If it is, the
amendment will be allowed; if it is not, the
amendment will be refused.
11. In its decision in Rameshkumar's case, the Apex Court reiterated
and reaffirmed the factors required to be taken into consideration while
dealing with the applications for amendment in its earlier decision in
Revajeetu Builders & Developers V/s. Narayanaswamy & Sons reported
in (2009) 10 SCC 84. The factors enumerated therein read as follows:
(1) whether the amendment sought is imperative
for proper and effective adjudication of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended
claims would be barred by limitation on the date
11
of application.
12. Mr. Bhobe on the other hand submits that application for
amendment cannot be allowed unless the party seeking amendment
satisfies the requirement under Order 6 Rule 17 Civil Procedure Code i.e.
to establishing that inspite of due diligence the party could not raise the
matter in the original plaint itself. The decision relied upon by Mr.
Bhobe must be distinguished on facts. The application for amendment in
that case before the Court had been filed when the issues had already
been framed. Consequently, the Court's jurisdiction to allow an
application for amendment had been taken away unless the condition
precedent therefor i.e. of establishing due diligence by the party was
satisfied. In the case on hand, the trial has not yet commenced and the
issues are not yet framed.
13. There can be no dispute about the proposition of law as established
by the ratios in the decision cited by Ms. Agni. It is well established
principle that the Court should allow all amendments that would be
necessary for determining the real question in controversy between the
parties. Merely because the party fails to include certain facts in the
original pleadings and files an application subsequently for including
12
those facts, the application cannot be rejected solely on the ground that
the applicant was well aware of the facts proposed to be brought on
record by way of amendment and ought to have pleaded the same in the
original pleadings. What is prohibited by way of an amendment is only
to alter cause of action in the suit or to introduce an entirely new or
inconsistent cause of action which would virtually amount to substitution
of a new plaint or new cause of action in the place of the original plaint.
In fact the very provision of Order 6 Rule 17 is to ensure that the parties
get an opportunity to place on record all the relevant facts in their
pleadings so as to promote the ends of justice and not defeat it. For that
purpose however, the factors that have been enumerated above must be
taken into consideration. The application of the petitioners is required to
be considered against the backdrop of the above legal position.
14. The p;etitioners propose to add paragraphs 21(a), 21(b), 21(c),
21(d), 22(a), 22(b), 22(c) and relief for mandatory injunction directing
respondents no.10 & 11 to remove the barbed fencing in plot no.D2
belonging to the petitioners, forming part of the property at Survey
No.26/3. A copy of the draft amendments has been annexed to the
petition at pages 77 to 96. Ms. Agni has made a statement that the
portions specified by her at proposed paragraphs 21(b), 21(c), 21(d) and
13
22(c), which have been bracketed by red pencil, are not insisted upon by
the petitioners. The portions specified by Ms. Agni are therefore treated
as deleted from the draft amendments. Ms. Agni submits that the rest of
the proposed amendments are essentially to give further and better
particulars of the claim already made in the plaint. The petitioners
propose to provide greater clarification of the right of access enjoyed by
them and the religious performances at the two sacred stones. According
to her the amendments neither change the nature of the suit nor can be
said to cause any inconvenience or prejudice to respondents no.10 & 11.
15. Ms. Agni has taken me through the entire draft amendments. The
proposed amendments at paragraph 21(a) is seen to bring on record the
further particulars of the access, running on the land at survey no.25
before touching upon the land at survey no.26/2. Mrs. Agni submits that
the plaint as it stands today describes only the access on the land of
respondents no.10 & 11. The proposed amendment at para 21(a) would
describe the access right from its starting point. In my opinion, the
proposed amendment at paragraph 21(a) would only assist the petitioners
to establish the suit access with much more clarity and therefore there
should be no difficulty in allowing the same. Mr. Bhobe submits that the
14
proposed amendments is nothing but an attempt on the part of the
petitioners in trying to fill up the lacuna in the plaint on account of which
they were denied the interim reliefs. He submits that theses deficiencies
in the plaint have been noted by this Court also in its order on the appeal
from order. Merely because the original proceedings were found
deficient in respect of certain relevant facts and the deficiency has
resulted into denial of interim reliefs, the same cannot come in the way of
an application for amending the plaint to remove the deficiencies. In fact,
the very purpose of the provision of Order VI Rule 17 Civil Procedure
Code is to remove the deficiencies in the pleading within the permissible
limits so that the rival claims are clearly brought forth in the pleadings for
the purpose of decision of the Court. The parts of paragraph 21(b) after
deleting the portions pointed out by Ms. Agni, which are bracketed in red,
would also serve the same purpose. In this paragraph, the petitioners also
seek to allege that respondents no.10 & 11 have put up a barbed wire
fencing pending the suit so as to cause deviation of the access. Hence,
this amendment can also be allowed.
16. The averments at proposed paragraph 21(c) narrate as to what had
transpired in this Court during the hearing of Appeal from Order
15
No.28/2012. These averments would be wholly unnecessary for deciding
the issues between the parties. Ms. Agni submits that respondents no.10
& 11 had made a certain statement before this Court in the appeal
proceedings and also produced a plan indicating an access thereon. This
plan would be relevant for the petitioners in establishing their access as it
exists at site. Since this would be a matter of evidence, in my opinion it
cannot form part of the pleadings. Hence, the amendments at proposed
paragraph 21(c) cannot be permitted.
17. The statements at paragraph 21(d), except for the portion bracketed
in red, relate to the alleged action of respondents no.10 & 11 of
constructing the barbed wire fencing next to alignment of the road and
the adverse effect of that fencing upon the access claimed to have been
enjoyed by the petitioners. Since amendment relating to this event of
putting up barbed wire fencing has already been allowed, the proposed
amendments at paragraph 21(d) can also be permitted at the costs of
repetition.
18. The statements at paragraphs 22(a), 22(b) and 22(c) are seen to be
the evidence of the religious ceremonies offered by the petitioners, their
16
families and others at the stones of “Sati Shila” and “Divzam Fator”.
This being part of the evidence the same need not be included in the
pleadings. Therefore, amendments in terms of proposed paragraphs 22(a),
22(b) and 22(c) is refused. The last amendment is of adding relief at
prayer clause 'AA' at paragraph 66 of the plaint. Since the prayer is
sought to be added so as to take care of the event subsequent to filing of
the suit and is relevant to the access claimed by the petitioners, the same
will have to be allowed.
19. The petition is therefore partly allowed in the above terms. The
rule is accordingly disposed of.
SMT. R.P. SONDURBALDOTA, J.
NH/-
Print Page
principle that the Court should allow all amendments that would be
necessary for determining the real question in controversy between the
parties. Merely because the party fails to include certain facts in the
original pleadings and files an application subsequently for including
those facts, the application cannot be rejected solely on the ground that
the applicant was well aware of the facts proposed to be brought on
record by way of amendment and ought to have pleaded the same in the
original pleadings. What is prohibited by way of an amendment is only
to alter cause of action in the suit or to introduce an entirely new or
inconsistent cause of action which would virtually amount to substitution
of a new plaint or new cause of action in the place of the original plaint.
In fact the very provision of Order 6 Rule 17 is to ensure that the parties
get an opportunity to place on record all the relevant facts in their
pleadings so as to promote the ends of justice and not defeat it. For that
purpose however, the factors that have been enumerated above must be
taken into consideration. The application of the petitioners is required to
be considered against the backdrop of the above legal position.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.108 OF 2013
Shri Prabhakar Xembu Bhandari,
Versus
The State Of Goa,
CORAM : SMT. R.P. SONDURBALDOTA, J.
DATE : 2nd MAY, 2013
Citation;2013(6) MHLJ440
Rule. Made returnable forthwith. By consent of parties the
petition is taken on board for final hearing.
2. The petitioners are the plaintiffs in Civil Suit No.78/2011 wherein
4
they had filed an application for amendment of the plaint. That
application was rejected by the trial court vide its order dated 7th January,
2013. The present petition is directed against that order.
3. In their suit the petitioners have sought five permanent reliefs out
of which three are for declarations and others for permanent injunctions.
The first declaration sought is that the petitioners have an easementary
right of access over survey no.26/2 which is being objected to by
respondents no.10 & 11, its present owners. The second declaration
sought is that the land at survey no.26/2 consists of hilly area with a steep
slope and not within the permissible gradient for development and that
“Divzam Fator” “Sati Shila” stones cannot be permitted to be destroyed,
since they are of sentimental value and historical importance. The third
declaration sought is that approval if any obtained by respondents no.10
& 11 from various authorities for sub-division of survey no.26/2 is illegal,
null and void. The reliefs of permanent injunctions are (i) to restrain
respondents no.10 & 11 from interfering with the suit access; (ii) from
carrying out any development activities in the hilly portion of survey
no.26/2 and (iii) destroying or shifting or tampering with “Divzam Fator”
“Sati Shila”. The sixth relief sought is of direction to respondents no.12
& 13 who are the Director, Archives and Archeological Department of
5
Goa and Superintendent Archeologist, Archeological Survey of India to
recognise “Divzam Fator” “Sati Shila” as of archaeological importance.
4. The case set out in the plaint by the petitioners, stated in brief is
that petitioner no.1 belongs to Kshatriya Bhandari caste. His family had
the house located at survey no.26/3. After the fall of Maratha empire his
family and other families residing on the property left the village and
settled elsewhere in Goa. Petitioner no.1 learnt from his ancestors that
widows of martial soldiers used to do “atmadahan” by jumping into the
pyre on the death of their husband at the place of “Sati Shila” and women
from his family and others of the same caste used to celebrate divzam at
“Divzam Fator”. There is also a shrine of Shree Bhandari Kulpurush on
the property at survey no.26/3 the access for which has been the suit
access.
5. The petitioners further allege in the plaint that the entire property
had originally belonged to the ancestor of one Mota Naik Gaunekar and
Vinayak Naik Gaunekar. There has been partition of the property in
which the land at survey no.26/2 came to be allotted to the family of
Vinayak Naik Gaunekar. The present owners of the property are
respondents no.10 & 11 who desire to develop the property purchased by
6
them. According to the petitioners the suit access is a cart road with the
width of 6 meters which has been used by them since their marriage,
initially by plying bullock-carts over it and for the last twenty years by
running motor vehicles.
6. At para 2 of the plaint the petitioners make it clear that the suit has
been filed by them in individual capacity. Therefore, the averments made
in the plaint and the reliefs sought therein will have to be appreciated and
considered from the perspective of the petitioners individual and personal
rights. Petitioner no.1 has also filed another suit representing “Shree
Bhandari Kulpurush Dev Saunsthan” in the capacity of its president along
with three others which is pending in the court of Civil Judge, Ponda.
7. The petitioners had taken out an application for interim reliefs to
restrain respondents no.10 & 11 inter alia from developing the land at
survey no.26/2. The trial Court by its order dated 22nd March, 2012
dismissed the application and allowed the application for temporary
injunction filed by respondents no.10 & 11. The petitioners had preferred
Appeal from Order no.28/2012 against the order of the trial Court
dismissing the application for interim reliefs. The appeal was disposed
off by this Court by its order dated 31st August, 2012, recording statement
7
of respondents no.10 & 11 that they would maintain status quo in respect
of the stone “Divzam Fator” and maintain the access shown in the
original No Objection Certificate dated 25th May, 2011 issued by the
Town and Country Planning Department, Ponda, Goa with the width of
access as 6 metres. While dismissing the Appeal from Order of the
petitioners this Court observed that the claim made by the petitioners in
the plaint is vague and without necessary particulars. The petitioners then
filed an application for amendment of the plaint to add eight paragraphs
and the relief at prayer clause 'AA' for a mandatory order directing
respondents no.10 & 11 to remove the encroachment made by them by
way of erection of barbed wire fencing on plot D2 belonging to the
petitioners forming part of the property of survey no.26/3. The
petitioners allege that on 14th July, 2012 respondents no.10 & 11 put a
barbed wire fencing which extends into plot no.D2 thereby committing
act of encroachment.
8. Respondents no.10 & 11 opposed the application for amendments
on several grounds. According to them the amendments sought were
more in the nature of evidence and arguments than the relevant facts. The
amendments proposed were not necessary for the purpose of deciding the
issue between the parties. Further the proposed amendments changed the
8
nature of the suit by bringing in a boundary dispute.
9. Before touching the rival contentions on the merits of the
application for amendments it would be convenient to take note of the
legal submissions advanced by both the sides and the citations relied
upon by them. Ms. Agni, the learned Counsel for the petitioner submits
that an application for amendment of the plaint is not to be refused on
technical grounds since the rules of procedure are intended to be a
handmaid to the administration of justice and the Court should always
give leave to amend the pleadings of a party unless it is satisfied that the
party applying was acting mala fide or that by his blunder, he has caused
injury to his opponent which may not be compensated for by an order of
costs. In support of her submissions she relies upon the decision of the
Apex Court in the case of Jai Jai Ram Manohar Lal V/s. National
Building Material Supply, Gurgaon reported in AIR 1969 SC 1267. The
observations relied upon by her from the decision read as under :
“Rules of procedure are intended to be a
handmaid to the administration of justice. A
party cannot be refused just relief merely
because of some mistake, negligence,
inadvertence or even infraction of the rules of
procedure. The Court always gives leave to
amend the pleading of a party, unless it is
satisfied that the party applying was acting mala
fide, or that by his blunder, he had caused injury
9
to his opponent which may not be compensated
for by an order of costs. However, negligent or
careless may have been the first omission, and,
however, late the proposed amendment, the
amendment may be allowed if it can be made
without injustice to the other side.”
For the same submission she also relies upon another decision of
the Apex Court in the case of M/s. Ganesh Trading Co. V/s. Moji Ram
reported in AIR 1978 SC 484.
10. Two more decisions of the Apex Court cited by her are in the case
of Rajesh Kumar Aggarwal & Ors. V/s. K.K. Modi & Ors. reported in
(2006) 4 SCC 385 and in the case of Rameshkumar Agarwal V/s.
Rajmala Exports Private Limited & Ors. reported in (2012) 5 SCC 337,
on the approach of the Court in considering application for amendment.
The relevant observations from the decision in Rajesh Kumar's case
(supra) read as follows:
“15. 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.
16. Order VI Rule 17 consist of two parts.
Whereas the first part is discretionary (may) and
leaves it to the Court to order amendment of
pleading. The second part is imperative (shall)
10
and enjoins the Court to allow all amendments
which are necessary for the purpose of
determining the real question in controversy
between the parties.
18. As discussed above, the real controversy
test is the basic or cardinal test and it is the
primary duty of the Court to decide whether
such an amendment is necessary to decide the
real dispute between the parties. If it is, the
amendment will be allowed; if it is not, the
amendment will be refused.
11. In its decision in Rameshkumar's case, the Apex Court reiterated
and reaffirmed the factors required to be taken into consideration while
dealing with the applications for amendment in its earlier decision in
Revajeetu Builders & Developers V/s. Narayanaswamy & Sons reported
in (2009) 10 SCC 84. The factors enumerated therein read as follows:
(1) whether the amendment sought is imperative
for proper and effective adjudication of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
(5) whether the proposed amendment
constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the amended
claims would be barred by limitation on the date
11
of application.
12. Mr. Bhobe on the other hand submits that application for
amendment cannot be allowed unless the party seeking amendment
satisfies the requirement under Order 6 Rule 17 Civil Procedure Code i.e.
to establishing that inspite of due diligence the party could not raise the
matter in the original plaint itself. The decision relied upon by Mr.
Bhobe must be distinguished on facts. The application for amendment in
that case before the Court had been filed when the issues had already
been framed. Consequently, the Court's jurisdiction to allow an
application for amendment had been taken away unless the condition
precedent therefor i.e. of establishing due diligence by the party was
satisfied. In the case on hand, the trial has not yet commenced and the
issues are not yet framed.
13. There can be no dispute about the proposition of law as established
by the ratios in the decision cited by Ms. Agni. It is well established
principle that the Court should allow all amendments that would be
necessary for determining the real question in controversy between the
parties. Merely because the party fails to include certain facts in the
original pleadings and files an application subsequently for including
12
those facts, the application cannot be rejected solely on the ground that
the applicant was well aware of the facts proposed to be brought on
record by way of amendment and ought to have pleaded the same in the
original pleadings. What is prohibited by way of an amendment is only
to alter cause of action in the suit or to introduce an entirely new or
inconsistent cause of action which would virtually amount to substitution
of a new plaint or new cause of action in the place of the original plaint.
In fact the very provision of Order 6 Rule 17 is to ensure that the parties
get an opportunity to place on record all the relevant facts in their
pleadings so as to promote the ends of justice and not defeat it. For that
purpose however, the factors that have been enumerated above must be
taken into consideration. The application of the petitioners is required to
be considered against the backdrop of the above legal position.
14. The p;etitioners propose to add paragraphs 21(a), 21(b), 21(c),
21(d), 22(a), 22(b), 22(c) and relief for mandatory injunction directing
respondents no.10 & 11 to remove the barbed fencing in plot no.D2
belonging to the petitioners, forming part of the property at Survey
No.26/3. A copy of the draft amendments has been annexed to the
petition at pages 77 to 96. Ms. Agni has made a statement that the
portions specified by her at proposed paragraphs 21(b), 21(c), 21(d) and
13
22(c), which have been bracketed by red pencil, are not insisted upon by
the petitioners. The portions specified by Ms. Agni are therefore treated
as deleted from the draft amendments. Ms. Agni submits that the rest of
the proposed amendments are essentially to give further and better
particulars of the claim already made in the plaint. The petitioners
propose to provide greater clarification of the right of access enjoyed by
them and the religious performances at the two sacred stones. According
to her the amendments neither change the nature of the suit nor can be
said to cause any inconvenience or prejudice to respondents no.10 & 11.
15. Ms. Agni has taken me through the entire draft amendments. The
proposed amendments at paragraph 21(a) is seen to bring on record the
further particulars of the access, running on the land at survey no.25
before touching upon the land at survey no.26/2. Mrs. Agni submits that
the plaint as it stands today describes only the access on the land of
respondents no.10 & 11. The proposed amendment at para 21(a) would
describe the access right from its starting point. In my opinion, the
proposed amendment at paragraph 21(a) would only assist the petitioners
to establish the suit access with much more clarity and therefore there
should be no difficulty in allowing the same. Mr. Bhobe submits that the
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proposed amendments is nothing but an attempt on the part of the
petitioners in trying to fill up the lacuna in the plaint on account of which
they were denied the interim reliefs. He submits that theses deficiencies
in the plaint have been noted by this Court also in its order on the appeal
from order. Merely because the original proceedings were found
deficient in respect of certain relevant facts and the deficiency has
resulted into denial of interim reliefs, the same cannot come in the way of
an application for amending the plaint to remove the deficiencies. In fact,
the very purpose of the provision of Order VI Rule 17 Civil Procedure
Code is to remove the deficiencies in the pleading within the permissible
limits so that the rival claims are clearly brought forth in the pleadings for
the purpose of decision of the Court. The parts of paragraph 21(b) after
deleting the portions pointed out by Ms. Agni, which are bracketed in red,
would also serve the same purpose. In this paragraph, the petitioners also
seek to allege that respondents no.10 & 11 have put up a barbed wire
fencing pending the suit so as to cause deviation of the access. Hence,
this amendment can also be allowed.
16. The averments at proposed paragraph 21(c) narrate as to what had
transpired in this Court during the hearing of Appeal from Order
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No.28/2012. These averments would be wholly unnecessary for deciding
the issues between the parties. Ms. Agni submits that respondents no.10
& 11 had made a certain statement before this Court in the appeal
proceedings and also produced a plan indicating an access thereon. This
plan would be relevant for the petitioners in establishing their access as it
exists at site. Since this would be a matter of evidence, in my opinion it
cannot form part of the pleadings. Hence, the amendments at proposed
paragraph 21(c) cannot be permitted.
17. The statements at paragraph 21(d), except for the portion bracketed
in red, relate to the alleged action of respondents no.10 & 11 of
constructing the barbed wire fencing next to alignment of the road and
the adverse effect of that fencing upon the access claimed to have been
enjoyed by the petitioners. Since amendment relating to this event of
putting up barbed wire fencing has already been allowed, the proposed
amendments at paragraph 21(d) can also be permitted at the costs of
repetition.
18. The statements at paragraphs 22(a), 22(b) and 22(c) are seen to be
the evidence of the religious ceremonies offered by the petitioners, their
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families and others at the stones of “Sati Shila” and “Divzam Fator”.
This being part of the evidence the same need not be included in the
pleadings. Therefore, amendments in terms of proposed paragraphs 22(a),
22(b) and 22(c) is refused. The last amendment is of adding relief at
prayer clause 'AA' at paragraph 66 of the plaint. Since the prayer is
sought to be added so as to take care of the event subsequent to filing of
the suit and is relevant to the access claimed by the petitioners, the same
will have to be allowed.
19. The petition is therefore partly allowed in the above terms. The
rule is accordingly disposed of.
SMT. R.P. SONDURBALDOTA, J.
NH/-
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