Writ Petition No.575 of 2011

17th December, 2011

Petitioner Counsel: Mr. A. F. DINIZ
Respondent Counsel: Mrs. A. A. AGNI, Mr. I. AGHA, Ms. A. RAZAQ, Mr. V. P. THALI

Cases Cited:
Gautam Sarup Vs. Leela Jetly and others, 2008 ALL SCR 1678 =(2008)7 SCC 85 [Para 4,9,12]
Chander Kanta Bansal Vs. Rajinder Singh Anand, 2008(4) ALL MR 423 (S.C.) =(2008)5 SCC 117 [Para 4,9]
Prem Bakshi and others Vs. Dharam Dev and others, 2002(1) ALL MR 978 (S.C.)=(2002)2 SCC 2 [Para 5,9]
Baldev Singh and others Vs. Manohar Singh and another, 2006(5) ALL MR 107 (S.C.)=(2006)6 SCC 498 [Para 5,9]
Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others, 2007 ALL SCR 1333 =(2007)5 SCC 602 [Para 5,9]
Sushil Kumar Jain Vs. Manoj Kumar and another, 2009 ALL SCR 2707 =(2009)14 SCC 38 [Para 5,9]

JUDGMENT

JUDGMENT :- Heard learned Counsel for the parties. Rule. By consent, heard forthwith.

2. By this petition, the petitioners take exception to the order dated 6th September, 2011 passed by the Civil Judge, S. D., Vasco in Special Civil Suit No.65/1997/B by which the application for amendment dated 26th July, 2011 filed by respondent nos.5 and 6/ defendant nos. 5 and 6 in the suit, has been allowed. The parties shall hereinafter be referred to as per their status before the trial Court.

3. The petitioners are the plaintiffs in the above suit filed against the respondents/ defendants seeking relief of declaration that the sale deeds dated 21st May, 1996 and 19th September, 1996 are null and void. The plaintiffs have also sought further declaration and permanent injunction against the defendants. The defendant nos.5 and 6, who were joined in the suit at the later stage, filed written statement in January, 2007. Thereafter, the plaintiffs sought leave to produce power of attorney dated 22nd November, 1975 executed by Ana Maria Fermina Trinidade Saldanha E Cunha in favour of Augusto Antonio Francisco Maria Do Rosario Rodrigues which was allowed by the trial Court in spite of the objection from the defendants including defendant nos.5 and 6. Thereafter, defendant nos.5 and 6 moved an application on 26th July, 2011 seeking to amend the written statement in terms of the draft amendment annexed to the said application. By the draft amendment, these defendants inter alia seek to challenge the alleged power of attorney executed by Ana Maria Fermina Trinidade Saldanha E Cunha. By the proposed amendment, these defendants have also challenged the gift deed dated 24th November, 1975, which was executed on the basis of the said power of attorney. The application for amendment was opposed by the plaintiffs. The trial Court by the impugned order dated 6th September, 2011 allowed the application. The plaintiffs have challenged the said order by filing the present petition.

4. Mr. Diniz, learned Counsel appearing for the petitioners submitted that by the proposed amendment, the scope of the suit has been completely changed inasmuch as initially defendant nos.5 and 6 had not denied the execution of the power of attorney nor thrown any challenge to the power of attorney or the gift deed. Learned Counsel further submitted that defendant nos.5 and 6 are guilty of laches inasmuch as the application for amendment has been filed after a considerable delay. Learned Counsel further submitted that neither the application for amendment has been verified nor any affidavit has been filed in support of the application. Mr. Diniz, therefore, submitted that on these grounds the impugned order is liable to be set aside. In support of his submissions, Mr. Diniz placed reliance upon the following judgments :

(i) Gautam Sarup Vs. Leela Jetly and others; (2008)7 SCC 85 : [2008 ALL SCR 1678].

(ii) Chander Kanta Bansal Vs. Rajinder Singh Anand; (2008)5 SCC 117 : [2008(4) ALL MR 423 (S.C.)].

5. Per contra, Mr. Thali, learned Counsel appearing on behalf of respondent nos.5 and 6 submitted that since by the impugned order the trial Court has allowed the amendment of the written statement, the petitioners / plaintiffs cannot be said to be aggrieved and no prejudice would be caused to the plaintiffs if the proposed amendment is allowed. Learned Counsel further submitted that the impugned order can be challenged by the plaintiffs in an appeal under Section 105 of C.P.C. in case decree is passed against the plaintiffs. According to the learned Counsel, delay on the part of defendant nos.5 and 6 is not as such so as to disentitle these defendants from seeking amendment of the written statement. Mr. Thali fairly submitted that the trial Court at the most could have imposed the costs on defendant nos.5 and 6 while allowing the application for amendment. Learned Counsel further submitted that the application for amendment need not be verified and non-verification cannot be the ground for dismissal of the application since these defendants are bound to carry out verification at the time of carrying out amendment pursuant to the impugned order. In support of his submissions, Mr. Thali placed reliance upon the following judgments :

(i) Prem Bakshi and others Vs. Dharam Dev and others; (2002)2 SCC 2 : [2002(1) ALL MR 978 (S.C.)].

(ii) Baldev Singh and others Vs. Manohar Singh and another; (2006)6 SCC 498 : [2006(5) ALL MR 107 (S.C.)].

(iii) Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others; (2007)5 SCC 602 : [2007 ALL SCR 1333].

(iv) Sushil Kumar Jain Vs. Manoj Kumar and another; (2009)14 SCC 38 : [2009 ALL SCR 2707].

6. I have carefully considered the rival submissions, perused the record and the judgments relied upon.

7. The question which arises for consideration is whether the trial Court has committed any jurisdictional error while granting the application for amendment filed by defendant nos.5 and 6 warranting interference by this Court ?

8. Before dealing with the submissions made by the learned Counsel for the parties, I deem it appropriate to refer to the authorities relied upon by the learned Counsel appearing for the petitioners and respondent nos.5 and 6.

9. In the case of Gautam Sarup, [2008 ALL SCR 1678] (supra), the Apex Court has held that the defendant cannot be permitted to resile from his admissions or from his original statement on the ground that the other defendants had disputed the claim of the plaintiff and, therefore, the amendment of the written statement would not prejudice the plaintiff.

In the case of Chander Kanta Bansal, [2008(4) ALL MR 423 (S.C.)] (supra), the Apex Court has held that the High Court was justified in setting aside the order passed by the trial Court allowing application for amendment filed by the defendant after both sides have closed their evidence and completed their arguments.

In the case of Prem Bakshi, [2002(1) ALL MR 978 (S.C.)] (supra) relied upon by Mr. Thali, the Apex Court has held that it is almost inconceivable that the order permitting amendment of the pleadings would cause failure of justice and irreparable injury to the other party.

In the case of Baldev Singh, [2006(5) ALL MR 107 (S.C.)] (supra), the Apex Court has held that the wide and unfettered discretion has been conferred on the Courts to allow amendment of the pleadings and the defendant is entitled to take inconsistent defences in the written statement unless serious injustice or irreparable loss is caused to the other side.

In the case of Usha Balashaheb Swamy, [2007 ALL SCR 1333] (Supra), the Apex Court has held that the party cannot be allowed to wriggle out of an admission by seeking amendment. However admission can be explained. The Apex Court further held that the Courts must be more liberal in allowing amendment of the written statement as the question of prejudice is less likely to operate in the event.

In the case of Sushil Kumar Jain, [2009 ALL SCR 2707] (supra), the Apex Court has held that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. The Apex Court reiterated that the Courts must be more liberal in allowing the amendment of the written statement than that of the plaint.

10. Insofar as the submission made by Mr. Diniz that the application was neither verified nor any affidavit is filed in support of the application for amendment is concerned, no doubt, defendant nos.5 and 6 ought to have either verified the application or filed an affidavit in support of the same. But, this fact by itself would not be sufficient to set aside the order allowing amendment after the trial Court has passed the order allowing the amendment. Defendant nos.5 and 6 ought to have verified the application after the objection was taken on behalf of the plaintiffs. Be that as it may, the fact that the application is not verified, cannot be taken as fatal to the maintainability of the application for amendment.

11. Insofar as the laches on the part of defendant nos.5 and 6 are concerned, no doubt, the application has been filed after about more than three years after filing of the written statement. However, the fact remains that it was only after the plaintiffs sought to rely upon the power of attorney executed by Ana Maria Fermina Trinidade Saldanha E Cunha in favour of Augusto Antonio Francisco Maria Do Rosario Rodrigues, for the first time in the year 2011 in the suit filed in the year 1997 that defendant nos.5 and 6 sought to amend the written statement. Therefore, it cannot be said that there are gross laches on the part of defendant nos.5 and 6 disentitling them from seeking amendment of the written statement. At the most the plaintiffs deserve to be compensated with costs.

12. Coming to the submission made by Mr. Diniz that the scope of suit is sought to be changed by the proposed amendment is concerned, no doubt in the written statement initially filed, defendant nos.5 and 6 did not throw any challenge to gift deed dated 24th November, 1975 or the power of attorney dated 22nd November, 1975. However, the fact remains that in the written statement, defendant nos.5 and 6 did not expressly admit the execution of gift deed in paragraph no.8 of the written statement in which it is stated that they were not aware of the gift deed executed on 24th November, 1975 by their grandmother in favour of the original plaintiff no.1. This being the position, the ratio laid down in the case of Gautam Sarup, [2008 ALL SCR 1678] (supra) upon which reliance has been placed by Mr. Diniz, is not applicable. In the said case, defendant no.6, who sought amendment of the written statement, had specifically admitted the pleas and contentions of the plaintiffs in the written statement. At later stage, respondent no.6 contended that she had not put her signature on the written statement as she had not engaged the advocate, who had filed the written statement. This contention was negatived by the trial Court. In this factual background, the Apex Court set aside the orders passed by the trial Court and High Court by which an application filed by respondent no.6 seeking amendment of the written statement taking the plea contrary to one taken in the original statement was allowed. In my considered opinion, the facts in the case of Gautam Sarup, [2008 ALL SCR 1678] (supra) are clearly distinguishable. In the present case, it cannot be said that defendant nos.5 and 6 had clearly admitted the case of the plaintiff. Moreover, the application for amendment was filed only after the plaintiffs were allowed to produce power of attorney dated 22nd November, 1975, which has been challenged by defendant nos.5 and 6 by the proposed amendment. Therefore, it cannot be said that by the proposed amendment, the scope of the suit has been completely changed, more particularly, having regard to the fact that the other defendants in the suit have already challenged the execution of the power of attorney and gift deed executed on the basis of the said power of attorney.

13. In my considered opinion, this is not fit case in which this Court should exercise extra-ordinary or supervisory jurisdiction to set aside the impugned order by which the application for amendment has been allowed by the trial Court. Having regard to the settled principle that the Court should normally allow the amendment of the pleadings in the suit more particularly, the written statement, as has been held by the Apex Court in various judgments referred to above, I am of the considered opinion that this is not fit case in which this Court should exercise extra-ordinary or supervisory jurisdiction to set aside the order passed by the trial Court in exercise of its discretion. However, in my considered opinion, as fairly submitted by Mr. Thali, the plaintiffs deserve to be compensated by awarding costs in favour of defendant nos.5 and 6. The costs are quantified at Rs.1,500/- (Rs. one thousand and five hundred only). Defendant nos.5 and 6 shall deposit the costs of Rs.1,500/- in the trial Court within a period of four weeks. Liberty to the plaintiffs to withdraw the amount of costs after they are deposited.

14. Writ Petition stands dismissed subject to award of costs as stated in paragraph no.13 hereinabove.

Petition dismissed.