Shri Subiraj P. Naik and his Wife and Mrs. Bharati S. Naik vs M/s Babu Sitaram Naik and Others

F.M. Reis, J.—Heard Shri V. P. Thali, learned Counsel appearing for the petitioners and Shri A. Gaonkar, learned Counsel appearing for the respondent nos. 1, 2, 7 and 8. At the outset, Shri V. Thali, learned Counsel appearing for the petitioners seeks leave to delete the names of respondent nos. 5 and 6 from the cause title. The names of respondent nos. 5 and 6 are deleted at the risk of the petitioners.

Upon hearing the learned Counsels, Rule. Heard forthwith by consent of learned Counsels.

Shri A. Gaonkar, learned Counsel waives service on behalf of respondent nos. 1, 2, 7 and 8.

Notice was issued to the respondents for disposal of the petition finally at the stage of admission. The remaining respondents though served failed to remain present.

The above petition challenges the order dated 08.08.2011 passed by the learned Civil Judge Junior Division, Quepem, whereby an application filed by the petitioners for amendment of the plaint came to be rejected.

The suit came to be filed by the petitioners for permanent injunction on the basis that the petitioners are the co-owners of the suit property surveyed under No. 143 of Mullem Village of Salcete Taluka. In the said suit, the petitioners inter-alia prayed for mandatory injunction directing the respondents to demolish the shed of laterite stones masonry, pillars casted, partition wall for storing crushed material, foundation constructed in the suit property surveyed under no.143 of Mullem Village as well as for permanent injunction restraining the respondents from doing any construction or alteration of any nature in the suit property and/or from cutting any trees etc., from the suit property.

The respondents have filed their written statement disputing the claim put forward by the petitioners. Much before the framing of the issues, the petitioners have filed an application for amendment inter-alia contending that the original lease deed executed by the grand father was null and void by making some specific averments and also inter-alia disputing the right of the lessor in executing the said document.

The respondents objected to the said application inter-alia contending that the petitioners are blowing hot and cold and that the petitioners are the beneficiaries of the said lease deed and as such, the question of incorporating such pleadings by the amendment application does not arise. The learned Judge by the impugned order dismissed the application for amendment.

Shri Thali, learned Counsel appearing for the petitioners has pointed out that considering that the application for amendment was filed much before framing of the issues, the learned Judge was not justified to refuse the application for amendment. The learned Counsel further pointed out that the petitioners are always entitled to raise such plea and seek leave to amend the plaint. The learned Counsel further pointed out that the learned Judge was not justified to go into the correctness of the allegations made in the amendment application at the stage when a leave to amend the plaint is considered and as such the impugned order deserves to be quashed and set aside.

On the other hand, Shri A. Gaonkar, learned Counsel appearing for the respondent nos. 1, 2, 7 and 8 pointed out that the claim of the petitioners is barred by law of limitation and as such, the learned Judge was justified to refuse the application for leave to amend the plaint. The learned Counsel further pointed out that the petitioners themselves are the beneficiaries to the said lease deed and as such the question of raising such inconsistent plea does not arise. The learned Counsel further pointed out that the petitioners are raising totally self destructive plea and as such the learned Judge was justified not to grant the application for leave to amend.

Having heard the learned Counsel and on perusal of records, it is not in dispute that the application for amendment was filed much before the framing of the issues. It is not in dispute that the allegations made by the proposed amendment are in respect of the suit property. It is well settled that the party can take inconsistent plea and as such, merely because such plea is inconsistent with the earlier pleadings by itself does not disentitled the party to seek leave to amend the plaint. In the present case, the learned Judge has refused the application for amendment essentially on the ground that the relief prayed in the suit is barred by law of limitation. On perusal of the draft amendment produced on record, I find that no relief was sought by the petitioners while seeking leave to amend the plaint. The findings of the learned Judge that the relief claimed by the petitioners is barred by law of limitation to refuse leave to amend the plaint cannot be sustained. Apart from that, another ground on which the application for amendment has been refused is that the original suit was filed for permanent injunction and the learned Judge found that the present suit would be changed to a suit for declaration and permanent injunction which also cannot be sustained in law. It is well settled that in a suit for permanent injunction, there is an implicit prayer for declaration. Besides that, no specific declaration has been sought by the petitioners by the proposed amendment application.

As such, considering the facts and circumstances of the case and taking note of the fact that the issues have not been framed, I find that the learned Judge was not justified to refuse the application for leave to amend the plaint on the ground set out in the impugned order. As such, the application for leave to amend the plaint deserves to be granted subject to payment of costs of Rs.2500/- to the respondent nos. 1, 2, 7 and 8. In view of the above, I pass the following :

ORDER

(i) The impugned order dated 08.08.2011 is quashed and set aside.

(ii) The application for leave to amend the plaint filed by the petitioners is allowed subject to payment of costs of Rs.2500/- to the said respondents as condition precedent.

(iii) All the contentions raised by the respondents on merits are left open.

(iv) Rule is disposed of in above terms.

(v) The petition stands disposed of with no order as to costs.