1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No.80 of 2008 Miss Shirley Victoria Menezes, Daughter of Doctor Eugenio Menezes, of full age, sinister, teacher, resident of Pequeno Morod, Saligao, Bardez-Goa. ..... Petitioner V e r s u s 1. Mr. Raymond De Souza, married to 2. Mrs. Vivien de Souza, Both r/o's 5111, Forest Grove, Crescent, Burlington, Ontario, Burlington, Canada. 3. Mr. Evaristo de Souza, of full age, married,service, son of Victor de Souza. 4. Mrs. Patricia de Souza, of full age, married, housewife. 5. Mrs. Alina de Souza, daughter of Victor de Souza, of full age, married and her husband. 6. Mr. Joe de Souza, of full age, married, businessman, All residents of Pequeno Morod, Saligao, Bardez, Goa. .... Respondents. 2 Mr. N. N. Sardessai, Advocate for the Petitioner. None appears on behalf of the respondents though served. Coram: A. P. Lavande, J. Date: 4th October,2010. ORAL JUDGMENT: Rule. Rule is made returnable forthwith. By this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 25/1/2008 passed by the Civil Judge, Senior Division, “B” Court, Mapusa dismissing the application for amendment filed by the petitioner/plaintiff in Regular Civil Suit no.69/1995/B. The petitioner filed the above suit seeking declaration and mandatory injunction against the respondents/defendants on the the ground that the defendants had blocked the access shown in the plan which was a traditional access. 2. Both the parties led evidence. Just before the final arguments the plaintiff sought amendment of the 3 plaint by adding para 11(a), which read thus: “11(a)- The plaintiff further submits that the suit access has been used continuously, peaceably, openly, uninterruptedly, publicly, despite objection as an easement and as of right since the year 1967”. 3. The learned trial Judge dismissed the application for amendment on the the ground that serious prejudice will be caused to the defendants in case the amendment sought for was allowed. 4. Mr. Sardessai, learned counsel for the petitioner submitted that the petitioner/plaintiff would suffer irreparable loss in the event the amendment is not allowed and the finding given by the learned trial Judge that prejudice will be caused to the defendant is patently unsustainable in law. He, therefore submitted that the impugned order deserves to be quashed aside. 4 5. Perusal of the record discloses that the plaintiff/petitioner had claimed that there was a traditional access and by the proposed amendment sought to plead that the said access has been used continuously, peaceably, openly, uninterruptedly, publicly, despite objection as an easement and as of right since the year 1967. It is pertinent to note that even by the amendment application the plaintiff did not seek declaration that the petitioner/plaintiff had acquired right of way by prescription. This being the position, amendment even if permitted would not advance the case of the petitioner. Moreover, on the basis of the pleadings of the parties, the issue was whether the plaintiff was entitled to the traditional access as claimed by her in the prayer clause. Therefore, the proposed amendment was not consistent with the case set up in the plaint and the amendment having been made at the stage of arguments, was rightly 5 dismissed by the learned trial Judge. I do not find any jurisdictional error having been committed by the learned trial Judge in rejecting the application. Hence, the petition is dismissed. Having regard to the fact that the respondents have chosen not to put in their appearance,the parties are directed to bear their own costs. 6. Interim order dated 2/2/2008 stands vacated. The parties either personally or through their advocates shall appear before the trial Court on 30th October, 2010 at 10.a.m. Since the suit is of the year 1985 the trial Court to dispose of the suit expeditiously. A. P. Lavande, J. Ap/-