1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS.178 AND 824 OF 2010. WRIT PETITION NO. 178 OF 2010 1. Mr. Ligorio Rodrigues, (Since deceased, through LRs) 1(a) Smt. Filomena L. Rodrigues, Major of age, housewife, Widow of Ligorio Rodrigues, 1(b) Mr. Caetano Manuel Pereira, Major of age,married, retired 1(c) Mrs. Luiza Maria Rodrigues @ Pereira, Major of age, married, service, Wife of Caetano Manual Pereira, All r/o H.No.189, Opp. Borim Church, Gadgo wada, Borim, Ponda-Goa. 1(d) Mr. Jose Nicolau Dias, Major of age, married, service, 1(e) Mrs. Jasmine Rodrigues @ Dias, Major of age, service, Wife of Mr. Nicholas Dias, Both r/o Fanseca Arcade, Near Civil Court, Ponda-Goa. 1(f) Mr. Keron Thomas @ Kumar, Bhat Tamragouri, Major of age, Service, married, 1(g) Mrs. Epifania Rodrigues e Thomas Tamragouri, major of age, housewife, Wife of Keron Thomas, Both r/o Indraprasta Apartments, II floor, F-3, Opp. Fatima Bungalow, Santa Cruz, Ponda-Goa 2 1(h) Mr. Domingos J. B. De Souza, Major of age, service, married, 1(i) Mrs. Simiyona Rodrigues @ De Souza, Major of age, married, housewife, Wife of Domingos J. B. De Souza, Both r/o Venus Residency, Morgado, Goa Velha, Goa. 2. Mrs. Filomena Rodrigues, Major of age, housewife, d/o Inacio Caetan Fernandes, r/o H. No.141, Borim, Ponda- Goa. .. Petitioners. Versus 1. Ana Quiteria Silveira E Rodrigues, Major of age, w/o Domingos S. Rodrigues, 2. Shri Jose Ligorio Rodrigues, Major of age, S/o Domingos S. Rodrigues, And his wife 3. Smt. Salvacao Fernandes E Rodrigues, Major of age, 4. Shri Rosario Rodrigues, Major of age, s/o Domingos S. Rodrigues, 5. Shri Walter Rodrigues, Major of age, s/o Domingos S. Rodrigues, All r/o near Borim Bridge, Borim, Ponda-Goa. 6. Prayagabai S. S. Borkar, (since deceased) major of age, widow of Suryaji Borkar, r/o. H.No. 351, A. C. Pacheco Road, Margao- Goa. 3 7. Mrs. Laxmi J. Dhond, Major of age, d/o Suryaji Borkar, Married, widow of Jiram S. Dhond, r/o New House, Panaji-Goa 8. Mrs. Supriya Dinesh @ Nilesh Nilesh Sinari, Major of age, d/o Jairam S. Dhond, and her husband 9. Dinesh @ Nilesh Sinari, Major of age, s/o Dinkar V. Sinari, businessman, both r/o New House, Ribandar, Panaji. 10. Mrs. Vandana C. Talwadkar, Major of age, daughter of Suryaji Borkar, Housewife, and her husband Prayagabai S. S. Borkar, 11. Mr.Chandrakant S. S. Talwadkar, Major of age, S/o S. S. Talwadkar, Both r/o New House, Shantinagar, Rawanfond, Margao-Goa. 12. Mr. Suhas S. Borkar, Major of age, son of Suryaji Borkar, and his wife 13. Mrs. Rukmini S. S. Borkar, Major of age, d/o Uttam Kolvalkar 14. Pramod S. Borkar, Major of age, bachelor, Son of Suryaji Borkar, Respondent nos.12 to 14 are r/o H. No.351, A.C. Pacheco Road, Margao- Goa. 15. Mr. Simon Antonio Rodrigues, (since deceased) Married, major of age, son of Santa Rita Rodrigues, And his wife 4 16. Mrs. Salvacao E. Rodrigues, married, major of age, Housewife, Both r/o H.No.133, Borim, Ponda, Goa 17. Mr. Angelo Rodrigues, Major of age, son of Santa Rita Rodrigues, and his wife 18. Mrs. Remina M. Rodrigues, Major of age, housewife, Both r/o H.No.133, Borim, Ponda- Goa. 19. Mr. Salvador Rodrigues, Major of age, married, Son of Gasper Rodrigues, And his wife 20 Mrs. Veronica Rodrigues, Major of age, Both r/o Colvale, Bardez, Goa. 21. Mr. Jose Paul Rodrigues, Major of age, married and his wife 22. Mrs. Luiza Rodrigues, Major of age, Both r/o Colvale, Bardez, Goa. 23. Mr. Soiru Keshav Porob Sawkar, Major of age, 24. Sumukh Soiru Porob Sawkar, Major of age, and his wife 25. Rima S. P. Sawkar, Major of age, 26. Chawan S. P. Sawkar, Major of age and his wife 27. Mr. Chaya Chawan S. P. Sawkar Major of age, 5 28. Rajendra Vinayak Desai, Major of age, 29. Asha Alias Rajeshree Rajendra Desai, Major of age, 30. Virendra Soiry Porob Sawkar Major of age, Respondent nos.23 to 30 are r/o. H. No.610, Deulwada, Borim, Ponda- Goa. 31. Hema Borkar, Major of age, d/o Umakant Sawkar and her husband, 32. Sandeep Borkar Major of age, Both resident of New House, Borim,Ponda-Goa 33. Seema Umakant Porob Sawkar Major of age, r/o H. No.70, Borim, Ponda-Goa. 34. Manorama Umakant Sawkar, Major of age, w/o Umakant Sawkar 35. Sailesh Umakant Sawkar, Major of age, r/o H.No.70, Borim, Ponda-Goa 36. Smt. Mariquina Silveira Rodrigues (since deceased) Major of age w/o Francisco Rodrigues, H.No.134, Borim, Ponda-Goa. 37. Shri John Paul Rodrigues, Major of age, s/o late Francisco Rodrigues, and his wife 38. Maria Nazareth Rodrigues, Major of age, Daughter in law of Francisco Rodrigues 39. Eddy Rodrigues, Major of age, 6 s/o Francisco Rodrigues, The Respondent nos.36 to 39 are r/o H.No.134. Borim, Ponda-Goa. .. Respondents Mr. A. D. Bhobe, Advocate for the petitioners. Mr. R. G. Ramani, Advocate for respondent nos. 7 to 14, 16, 17, 23, 25, 29. Mr. V. A. Lawande, Advocate for respondent nos.1 to 5, 30, 31, 33, 34, 37 to 39. WITH WRIT PETITION NO. 824/2010 1. Prayagabai S. S. Borkar, Major age, widow of Suryaji Borkar, r/o H.No.351, A.C. Pacheco road, Margao Goa (since deceased) 2. Mrs. Laxmi J. Dhond, d/o Suryaji Borkar, married, widow of Jairam S. Dhond, r/o New House, Panaji, Goa 3. Mrs. Supriya Dinesh alias Nilesh Sinari d/o Jairam S. Dhond, her husband, 4. Dinesh alias Nilesh Sinari s/o Dinkar V. Sinari, Businessman, both r/o New House, Ribandar, Panaji 4A Mrs. Vandana C. Talwadkar, Major of age, daughter of Suryaji Borkar, Housewife, and her husband, 5. Mr. Chandrakant S. S. Talwadkar, s/o S. S. Talwadkar, both r/o New House, Shantinagar, Rawanfond, Margao-Goa. 7 6. Mr. Suhas S. Borkar, Major of age, son of Suryaji Borkar and his wife, 7. Mrs. Rukmini S. S. Borkar, Major of age, d/o Uttam Kolvalkar 8. Pramod S. Borkar, Major of age, bachelor, Son of Suryaji Borkar, Petitioners no.6 to 8 r/o H.No.351, A.C. Pacheco Road, Margao- Goa. 9. Mr. Simon Antonio Rodrigues, (expired) married, son of Santa Rita Rodrigues and his wife 10. Mrs. Salvacao E. Rodrigues Major of age, House wife, both r/o House No.133, Borim, Ponda. 11. Mr. Angelo Rodrigues, Major in age, son of Santa Rita Rodrigues and his wife 12. Mrs. Remina M. Rodrigues, Major of age, House wife, both r/o House No.133, Borim – Ponda 13. Mr. Salvador Rodrigues (expired) Major of age, married, s/o Gaspar Rodrigues and his wife 14. Mrs. Veronica Rodrigues, Major of age, both r/o Colvale, Bardez, Goa, New House number 15. Mr. Jose Paul Rodrigues Major of age, married and his wife 16. Mrs. Luiza Rodrigues Major of age, both r/o Colvale, 8 Bardez-Goa. New house 17. Mr. Soiru Keshav Porob Sawkar major of age, 18. Sumukh Soiru Porob Sawkar (since deceased) major of age, and his wife, 19. Rima S. P. Sawkar major of age, 20. Chawan S. P. Sawkar major of age, and his wife, 21. Mrs. Chaya Chawan S. P. Sawkar major of age, 22. Rajendra Vinayak Desai, major of age, and his wife, 23. Asha alias Rajeshree Rajendra Desai, major of age, 24. Virendra Soiru Porob Sawkar, major of age, The plaintiffs nos. 19 to 26 r/o H.No.610, Deulwada, Borim, Ponda. 25. Hema Borkar, d/o Umakant Sawkar, and her husband 26. Sandeep Umakant Porob Sawkar both r/o New House, Borim, Ponda-Goa. 27. Seema Umakant Porob Sawkar major of age, r/o H.No.70, Borim, Ponda. 28. Manorama Umakant Sawkar w/o Umakant Sawkar 29. Sailesh Umakant Sawkar, major of age, both r/o H.No.70, Borim, Ponda. 9 30. Smt. Mariquina Silveira Rodrigues, (expired) w/o Francisco Rodrigues, H.No.134, Borim, Ponda. 30a) Libania Fernandes r/o H.No.134, Borim, Ponda, Goa. 31. Shri John Paul Rodrigues, s/o late Franciso Rodrigues and his wife, 32. Maria Nazareth Rodrigues, daughter in law of Franciso Rodrigues 33. Eddy Rodrigues, major age s/o late Franciso Rodrigues The plaintiffs nos. 32 to 35 are r/o H.No.134, Borim, Ponda. .. Petitioners. Versus 1. Ana Quiteria Silveira e Rodrigues w/o Dominogs S. Rodrigues 2. Shri Jose Ligorio Rodrigues, s/o Domingos S. Rodrigues and his wife 3. Smt. Salvacao Fernandes e Rodrigues, major of age, 4. Shri Rosario Rodrigues, major of age, s/o Dodmongos S. Rodrigues 5. Shri Walter Rodrigues, Major of age, s/o Domingos S. Rodrigues, All r/o Near Borim Bridge, Borim, Ponda. 6. Mr. Ligorio Rodrigues, Son of Alexio Rodrigues (since deceased) 10 6A Smt. Filomena L. Rodrigues, Major in age, housewife, Widow of Ligorio Rodrigues, 6B. Mr. Caetano Manual Pereira Age 56 years,married, retired, 6C. Mrs. Luiza Maria Rodrigues @ Pereira, Age 48 years, married, service, Wife of Caetano Manual Pereira, All r/o H.No.189, Opp. Borim Church, Gadgo Wada, Borim, Ponda, Goa. 6D. Mr. Nicholas Dias Age 54 years, married, service, 6E. Mrs. Jasmine Rodrigues @ Dias, Age 43 years, service, wife of Mr. Nicholas Dias, Both r/o Fanseca Arcade, Near Civil Court, Ponda, Goa. 6F. Mr. Keron Thomas @ Kumar Bhat Tamragouri, age 42 years, service, married, 6G. Mrs. Epiphania Rodrigues @ Thomas Tamragouri, age 41 years, housewife Wife of Keron Thomas, Both r/o Indraprasta Apartments, II Floor, F-3, Opp. Fatima Bungalow, Santa Cruz, Ponda Goa. 6H. Mr. Domingos J. B. De Souza, Age 44 years, service, married, 6I. Mrs. Simiyona Rodrigues @ de Souza, Age 44 yeas,married, housewife, Wife of Domingos J.B. De Souza, Both r/o Venus Residency, Morgado, Goa Velha, Goa. 7. Mrs. Filomena Rodrigues, major of age, housewife, d/o Inacio Caetan Fernandes, r/o H.No.141, Borim, Ponda-Goa. .. Respondents. 11 Mr. R. G. Ramani, Advocate for the petitioners. Mr. V. A. Lawande, Advocate for respondent nos.1 to 4. Mr. A. D. Bhobe, Advocate for respondent nos.6A to 6I and 7. Coram :- A. P. LAVANDE, J. Date : 7 th April, 2011. ORAL JUDGMENT : Both these petitions are disposed of by common judgment since challenge in both these petitions is to the order dated 19th September, 2009 passed by the learned Civil Judge, Senior Division, Ponda in Regular Civil Suit No.310/2000/A (New). 2. Heard learned Counsel for the parties. Rule. By consent of the learned Counsel for the parties heard forthwith. 3. By these petitions under Article 227 of the Constitution of India, the petitioners in both the petitions challenge the order dated 19th September, 2009 passed by the learned Civil Judge, Senior Division, Ponda in Regular Civil Suit No.310/2000/A (New) by which the application filed under Order 14, Rule 5 read with Section 151 of C.P.C. on 12 behalf of defendant nos.1, 2, 4 and 5 seeking framing of additional four issues has been allowed. 4. Perusal of the record discloses that defendant nos.1, 2, 4 and 5 had earlier filed an application exhibit 36-D in April, 2008 seeking amendment of the written statement, inter alia, taking the plea of tenancy in respect of paddy field portion of the suit land. The said application was dismissed by order dated 6th August, 2008. Thereafter, the plaintiffs filed an application seeking clarificatory amendment, which was allowed by the trial Court. Pursuant to the said amendment, additional written statement was filed by defendant nos.1, 2, 4 and 5 in which several additional contentions were raised. On the basis of the additional written statement, defendant nos.1, 2, 4 and 5 filed an application dated 10th September, 2009 for framing the following additional issues : (a) Whether defendant nos.1, 2, 4 and 5 prove that the trial Court has no jurisdiction to grant the prayers for partition of the suit property. (b) Whether defendant nos.1, 2, 4 and 5 prove that they are owners in cultivation of the respective share and tenants in respect of 13 remaining suit property which includes paddy fields. (c) Whether plaintiffs proves that Balchandra Suryaji Shenvi Borkar or Balkrishna Suriaji Shenvi Borkar or Ramkrishna Suriaji Sinai and Sridora Panduranga Sinai have 1/3rd right. (d) Whether plaintiffs proves that the plaintiff Nos.1-8, along with Sridora Panduranga Sinai have 1/3rd share in suit property. 5. The application was opposed on behalf of the plaintiffs. By the impugned order dated 19th September, 2009, the trial Court allowed the application on the ground that since in the additional written statement, the said defendants had made statements giving rise to the additional issues, it was necessary to frame the said issues. Consequently, the trial Court allowed the application. 6. Mr. Ramani, learned Counsel on behalf of the petitioners in Writ Petition no.824/2010, contended that in view of the earlier order dated 6th August, 2008 disallowing the application for amendment and in view of the fact that the amendment sought by the plaintiffs was only by way of clarification, the trial Court ought not to have framed the 14 additional issues in terms of the impugned order. According to learned Counsel, the statements made in the additional written statement in reply to the amendment of the plaint, were beyond the scope of the amendment permitted by the trial Court and, therefore, the trial Court ought not to have framed the additional issues on the basis of the pleadings in additional written statement. In support of his submissions, reliance has been placed on the judgment of the Apex Court in the case of Gurdial Singh and others Versus Raj Kumar Aneja and others; (2002)2 SCC 445. 7. Mr. Bhobe, learned Counsel appearing for the petitioners in Writ Petition No.178/2010 adopted the submissions made by Mr. Ramani, learned Counsel on behalf of the petitioners in Writ Petition No.824/2010. 8. Mr. Lawande, learned Counsel on behalf of respondent nos.1 to 4 in Writ Petition No.824/2010 submitted that no fault can be found with the impugned order and that the trial Court was justified in framing the additional issues on the basis of the additional pleadings in the additional written statement. Learned Counsel further submitted that the said issues arise on the basis of the pleadings and, therefore, interference is warranted with the impugned 15 order. 9. Perusal of the impugned order discloses that the learned trial Court has not even referred to the earlier order dated 6th August, 2008, which was passed disallowing the application for amendment. Moreover, in case of Gurdial Singh (supra), the Apex Court has held that if amendment is allowed in a suit, in reply to the said amendment, new plea cannot be permitted to be raised in the garb of consequential amendment although it can be pleaded by way of independent or primary amendment. Indisputably, before the trial Judge the judgment of the Apex Court in the case of Gurdial Singh (supra) was not cited and as such, the trial Court had no occasion to consider the same. 10. In view of the above position and without going into merits of the rival claims, I deem it appropriate to set aside the impugned order and remand the matter to the trial Court to pass a fresh order after giving opportunity of being heard to both sides and after considering the legal position as laid down in the Gurdial Singh (supra) and the other judgments that may be cited by the rival parties. 11. In view of the above, Rule is made partly absolute 16 in aforesaid terms in both the cases with no order as to costs. Interim relief granted, stands vacated. Parties shall appear before the trial Court on 28th April, 2011 at 10.00 a.m. A. P. LAVANDE, J. SMA