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Judgment
A.P. Lavande, J.—Rule. By consent of the learned Counsel for the petitioners heard forthwith.
By this petition, under Article 227 of the Constitution of India, the petitioners challenges two orders dated 17/9/2010 passed by the Civil Judge, Junior Division "C" Court, Panaji in Regular Civil Suit No. 38/08/C disallowing two applications filed by the petitioners seeking amendment of the written statement filed by plaintiffs to the counter claim and seeking leave to produce three documents in view of the proposed amendment.
The petitioners are the plaintiffs in the above suit filed against the respondents/defendants seeking relief of mandatory and permanent injunction. The defendants filed counter claim seeking demolition of the house constructed by the plaintiffs in the year 1986. The plaintiffs filed written statement to the counter claim. Thereafter, issues were framed by the trial Court. Record discloses that the petitioners filed an application seeking to withdraw certain statements made in the counter claim which was dismissed by trial court by order dated 4/5/2010. Thereafter, the plaintiffs filed another application dated 17/7/2010 seeking amendment to the written statement to the counter claim and another application dated 17/7/2010 seeking leave to produce three additional documents in support of the proposed amendment. By the proposed amendment, the plaintiffs sought to give the value of the residential house constructed by them, at the time of construction as well as on the date of filing the suit and other details regarding the said house, like plinth area of the house etc.. The trial court by impugned order dated 17/9/2010 dismissed the application primarily on the ground that the trial of the suit had begun in view of the framing of the issues. Consequently, the trial court also dismissed the application for production of documents in support of the proposed amendment.
Mr. Ramani, learned Counsel for the petitioners placed reliance upon the judgment delivered by the learned Single Judge of this Court in the case of Bhagwandas Kanhaiyyalal Bubna Vs. Shyamsunder Wasudeo Bubna and Others, , submitted that since actually the plaintiffs had not led evidence of plaintiff by way of an affidavit, the trial had not commenced and as such the trial court could not have dismissed the application for amendment on the ground that the trial had commenced.
Per contra, Mr. Pangam, learned Counsel appearing for the respondents submitted that the proposed amendment is not necessary for deciding the real matters in controversy between the parties and although the reason given by the trial Court is not sustainable in law, the amendment sought for by the plaintiffs does not deserve to be allowed and consequently no interference is warranted with the impugned orders.
Having considered the rival submissions and having perused the record, I am of the considered opinion that the issue involved in this case is squarely covered by the judgment delivered by the learned Single Judge of this Court in the case of Bhawandas Bubna, (supra). In the said case, the learned Single Judge after referring to two judgments of the Apex Court in 2009 (1) ALL MR 471 and Kailash Vs. Nanhku and Others, held that the amendment application could not have been rejected on sole ground that matter was fixed for recording of evidence. The amendment application could not have been rejected on the ground that issues have been framed since evidence by way of affidavit of the plaintiff was not filed in the suit. The ratio laid down int he said judgment is squarely applicable to the present case. I am unable to agree with Mr. Pangam that the proposed amendment is not necessary for deciding the real matter in controversy between the parties. By the proposed amendment, the plaintiffs sought to give the details regarding the house which was constructed in the year 1986 which will have direct bearing on the reliefs sought by the defendants by way of counter claim. Therefore, it cannot be said that the proposed amendment is not necessary for deciding the real matters in controversy. In my opinion , the amendment sought was necessary for deciding the matters in controversy between the parties.
Mr. Pangam is right in pointing that the petitioners ought to have pointed out in the present petition that the earlier amendment application filed by the petitioners was dismissed by the trial court. Be that as it may be, the impugned orders disallowing the amendment application and rejecting prayers for production of additional documents deserve to be quashed and set aside.
In view of the above, the impugned orders dated 17/7/2010 passed by the trial court are quashed and set aside.
Consequently, both the applications are allowed. The petitioners/plaintiffs are permitted to amend the counter claim within a period of two weeks and are also permitted to rely upon the documents mentioned in the application dated 17/7/2010. The petitioners shall pay costs of Rs. 1500/-(Rupees one thousand five hundred only) to the respondents. The costs shall be deposited in the trial court before the amendment is carried out. Liberty to the respondents/defendants to withdraw the costs after they are deposited.
Rule is made absolute in the aforesaid terms.