-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 694 OF 2011 1. Shri Antonio Francisco Ligorio Fernandes, and his wife; 2. Smt. Caetana Rosaria Antao Alias Rosy Fernandes, Both residents of Lirose Villa. H. No. 1509-A, St. Anthony ward, Opp. St. Anthony Chapel, Curtorim, Salcete, Goa. 3. Smt. Rosy Fernandes e Correira, and her husband; 4. Shri Michael Correira, Both residents of B-43, Sonal Apartments, Near St. Francis Church, I. C. Colony Road, Borivli West, Mumbai 400 096, being Appellants No. 3 and 4 represented by their Power of Attorney The Appellant No.1, abovenamed. …... Petitioners V e r s u s 1. Shri Inacio Filipe Fernandes and his wife; 2. Smt. Guilhermina Costa, Both residents of H. No. 1522-A, St. Anthony ward, Curtorim,, Salcete, Goa. 3. Shri Joao Vitorino Fernandes, resident of H. No. 1522-A, St. Anthony ward, Curtorim, Salcete, Goa. 4. Smt. Maria Rita Fernandes, daughter of Aleixo, Onofre Mascarenhas, aged 50 years, service, resident of H. No. 1522, St. Anthony ward, Curtorim, Salcete, Goa. -2- 5. Smt. Josefina Fernandes e Gracias, daughter of Minguel Joao Fernandes, aged 65 years, housewife, and her husband; 6. Shri Caitano Gracias, son of Simon Gracias, aged 66 years, retired, Both residents of H. No. 1304/J, New Monson, Curtorim, Salcete, Goa. 7. Smt. Francisca Fernandes, widow of Aleixo Fernandes, aged 68 years, housewife, c/o. Lourenco Fernandes, r/o. H. No. 1304/J, New Monzon, Curtorim, Salcete, Goa. 8. Shri Laurente Fernandes, son of Minguel Joao Fernandes, aged 53 years, unemployed, and his wife; 9. Smt. Carmina Fernandes, daughter of Mr. Joaquim Vincent Sequeira, aged 49 years, service, `represented by Respondent no.5 in this Appeal both residents of H. No. 350/10, Camurlim, Tembi, Raia, Salcete, Goa. … Orig. Defs. No.3 to 9 10. Smt. Flavia Fernandes, married to 11. Mr. Caitano Fernandes, Both residents of Muxewaddo, Curtorim, Salcete, Goa. 12. Mr. Lawrenco Fernandes, married to 13. Mrs. Betty Fernandes, Both residents of New Monzon, Curtorim, Salcete, Goa. Above addresses of the parties are registered addresses …... Respondents -3- Mr. Sudin Usgaonkar, Advocate for the Petitioners. Mr. J. Godinho, Advocate for the Respondent nos. 3 to 13. Coram :- F. M. REIS, J Date : 16 th November, 2011. ORAL JUDGMENT Heard Shri Sudin Usgaonkar, learned Counsel appearing for the Petitioners and Shri J. Godinho, Advocate for the Respondent nos. 3 to 13. The Respondent nos. 1 and 2 duly served remained absent. Notice was issued for final disposal at the time of admission. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondent nos. 3 to 13 waives service. 3. The above Petition challenges the Order passed by the learned Civil Judge, Senior Division, at Margao, dated 29.08.2011, whereby an application for amendment of the plaint to rectify the prayer clause came to be rejected. 4. It is the contention of the Petitioners that there was a typographical error in the prayer clause of the plaint whereby by inadvertence prayer clause (a) of the plaint does not disclose that the southern half is to be allotted to the Petitioners and the northern half is to be allotted to the heirs of Minguel Joao. It is the case of the Petitioners at para 3 of the plaint that in view of the Judgment passed on 25.04.1996 in Regular Civil Suit no. 9/1981, the southern part of the house was -4- belonging to the family of Joao Santana, who are the Petitioners herein and its northern part to the family of Minguel Joao who are the Respondent nos. 3 onwards. Whilst dealing with the contention of para 3 of the plaint, the Respondent nos. 3, 4, 5, 6, 7 and 8 in their written statement have clearly stated that they admit that in Regular Civil Suit no. 9/1981/D, which was a suit filed by the said Minguel Joao Fernandes against the legal representatives of the said Joao Santana Fernandes, by Judgment and Order delivered on 25.04.1996, the Court decided that the said Joao Santana Fernandes acquired title to the portion of the house which is situated towards the southern side of the said house and situated in the property surveyed under no. 149/4 of Curtorim Village. At para 5 of the said written statement, the said Respondents state that they alone are entitled to 1102 square metres which are situated towards the northern side of said area of 623 square metres lying beyond the said portion shown in green and yellow colour in the plan annexed thereto. 5. Considering the pleadings of the parties, without considering the correctness or otherwise of the respective claims of both the parties, there can be no dispute that the claim of the Petitioners has been to the southern portion of the house whereas the claim of the said Respondents was to the northern portion of the said house. No doubt a dispute is sought to be raised as far as the respective claims of the areas by each of them. Be that as it may, considering the pleadings of the parties and the relief clause as it stands in the plaint, there can be no doubt that there is a mistake which has cropped up in the relief clause which has to be rectified. On the face of the pleadings and the amendment sought to be incorporated by the Petitioners, I find that the learned Judge was not -5- justified to refuse to grant leave to amend the plaint so that the relief clause should be in consonance with the pleadings of the Petitioners. The learned Judge whilst passing the impugned Order has relied upon the proviso to Order 6 Rule 17 inserted by Code of Civil Procedure (Amendment) Act, 2002, to refuse the leave to the Petitioners to amend the plaint. The suit admittedly is filed by the Petitioners in July 2001 much before the coming into force of the said amendment to the provisions of the Civil Procedure Code in the year 2002. The Apex Court in the Judgment reported in (2007) 1 S.C.C. 765 in the case of State Bank of Hyderabad vs. Town Municipal Council, has held at Paras 5, 6, 7, 8 and 9 thus : “5. Order 6 Rule 17 of the Code reads thus: “The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” 6. The proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1-7-2002. It reads as under: “Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 7. Section 16(2) of the amending Act of 2002 reads as under: “16. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the -6- provisions of Section 6 of the General Clauses Act, 1897,— (a) * * * (b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;” 8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order 6 Rule 17 of the Code shall not apply. 9. The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before the commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said proviso.” Considering the said Judgment of the Apex Court, the question of refusing the amendment by relying upon the proviso to Order 6 Rule 17 does not arise at all. 6. As stated herein above, the amendment sought by the Petitioners is -7- essentially is to correct the typographical error in the relief sought by the Petitioners so as to make it in consonance with the pleadings in the plaint. The Apex Court in similar situations in the Judgment reported in (2005) 13 S.C.C. 89, in the case of Sajjan Kumar vs. Ram Kishan, has held at Para 5 thus : “5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit.” Considering the said Judgment of the Apex Court, I find that the learned Judge has committed error of jurisdiction in refusing the application for amendment and, as such, the impugned Order deserves to be quashed and set aside. -8- 7. Shri Godinho, the learned Counsel appearing for the Respondent nos. 3 to 13, has pointed out that in case such amendment is allowed, the Respondents would be entitled to file an additional written statement as well as lead further evidence. No doubt, in case amendment is allowed, the Respondents would be entitled to file additional written statement and even lead evidence if they so desire in respect of their respective contentions in accordance with law. 8. Considering the facts and circumstances of the case as mentioned herein above and the Judgments of the Apex Court in the cases of State Bank of Hyderabad vs. Town Municipal Council (supra) and Sajjan Kumar vs. Ram Kishan, (supra) I find that the learned Judge was not justified to refuse the leave to amend the plaint. The amendment sought was clarifactory to rectify an obvious typographical error in the relief clause. In the facts and circumstances of the case, I find that the learned Judge has acted with material irregularity whilst passing the impugned Order which cannot be sustained and deserves to be quashed and set aside. 9. In view of the above, I pass the following : ORDER (i) The impugned Order dated 29.08.2011, is quashed and set aside. (ii) The application for amendment filed by the Petitioner dated -9- 24.06.2011 is allowed. (iii) The Petitioners are allowed to amend the plaint in the manner as prayed for. No doubt, the Respondents would be entitled to file their additional written statement in the light of the observations made herein above in accordance with law. (iv)Rule is disposed in the above terms. (v) Petition is disposed of accordingly with no orders as to costs. F .M. REIS, J. arp/*