:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 638 OF 2008 1. Shri Dattatraya Shivaji Thorwat, Behind Don Bosco, House No. 528, Murida, Fatorda, Margao, Goa. 2 Smt. Yeshoda Dattatraya Thorwat, Behind Don Bosco, House No. 528, Murida, Fatorda, Margao, Goa. …..... Petitioners. Versus 1 Smt. Clothildes Souoza, House No.559, Agali, Margao, Goa. 2 Smt. Luiza Maria Vaz e Gama, House No.632, Opp. Dr. Kuelkar's House, Thana, Cortalim, Goa. 3 Shri Martin Xavier Gama, House No.632, Opp. Dr. Kuelkar's House, Thana, Cortalim, Goa. 4 Augustininho Vaz, House No.559, Agali, Margao, Goa. 5 Sebastian Luis Vaz, House No.559, Agali, Margao, Goa. 6 Smt. Juliet Ena Fernandes, House No.559, Agali, Margao, Goa. :2: 7 Ms. Natalina Vaz, House No.559, Agali, Margao, Goa. 8 Silvestrina Diaz, House No.595, Agali, Margao, Goa. 9 Jose Bento Antonio Vaz, House No.595, Agali, Margao, Goa. 10 Baptista Antonio Vaz, House No.595, Agali, Margao, Goa. 11 Joaquim Antonio Vaz, House No.595, Agali, Margao, Goa. 12 Succorina Antonio Vaz, House No.595, Agali, Margao, Goa. 13 Alberto Caetano Cardozo, (deceased by LR's ) House No. 1089, St. Xavier Waddo, Raia, Salcete Goa, 1)Shri Carlos Cardozo, r/o. Katrijpstraat, 174 1024, SX-Amsterdam, Nederland. 2)Shri Cheryl Barreto e Cardozo, r/o. Katrijpstraat, 174, 1024, SX-Amsterdam, Nederland. 3)Smt. Emilla Cardozo Oliveira, r/o. Denburgstraat –44 1024, GK- Amsterdam, Nederland. :3: 4)Shri Santana Oliveira, r/o. Denburgstraat – 44 1024, GK-Amsterdam, Nederland. 5)Smt. Maria Ezabela Cardozo Oliveira, r/o. Talcond, Near St. Tereza High School, Raia, Salcete- Goa. 6)Shri Reginaldo Oliveira, r/o. Talcond, Near St. Tereza High School, Raia, Salcete- Goa. 14 George Alberto Cardozo, House No. 1089, St. Xavier Waddo, Raia, Salcete, Goa. 15 Luis Alberto Cardozo, House No. 1089, St. Xavier Waddo, Raia, Salcete, Goa. 16 Maria Magdalena Cardozo, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. 17 Joao Lourenco Baptista, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. 18 Maria Yvone Baptista, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. 19 Jose Rosarinho Baptista, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. :4: 20 Gracinda Jose Baptista, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. 21 Alex Joao Baptista, House No. 1092, St. Xavier Waddo, Raia, Salcete, Goa. 22 Leena Alex Baptista, House No. 1093, St. Xavier Waddo, Raia, Salcete, Goa. 23 Antonio Jose Roberto Cardozo, House No. 1089, St. Xavier Waddo, Raia, Salcete, Goa. 24 Nicoline Roberto Cardozo, House No. 1089, St. Xavier Waddo, Raia, Salcete, Goa. 25 Clara Colaco e Melo, House No.E-15, Raghukul Hsg. Cooperative Society, Opp. Multipurpose High School, Borda, Margao, Goa. 26 Franzie Franklin Dias, House No. 204/2, Pacheco Waddo, Majorda, Salcete, Goa. 27 Franklin Robert Dias, House No. 204/2, Pacheco Waddo, Majorda, Salcete, Goa. 28 Ivette Anunciacao Filomena de Piedade e Melo alias Yuvati Datta Mahatme, :5: Mahatmes Computer Services, Gr. Floor, La Vivenda Apartments, Old Market, Margao, Goa. 29 Datta B. Mahatme, Mahatmes Computer Services, Gr. Floor, La Vivenda Apartments, Old Market, Margao, Goa. 30 Maria Lourdes Bernadete da Piedade Melo, House No.1190, Near Don Bosco Technical Institute, Fatorda, Margao, Goa. 31 Josefato Henriques, House No.1190, Near Don Bosco Technical Institute, Fatorda, Margao, Goa. 32 Jose Antonio Agnelo Carmo Filomena de Piedade e Melo, House No.766, Near St. Tereza Convent Ganapoga Raia, Salcete, Goa. 33 Clariza Agnelo D'Melo, House No.766, Near St. Tereza Convent Ganapoga Raia, Salcete, Goa. 34 Ferdinardo Gonzaga Filomeno da Piedade e Melo, House No.766, Near St. Tereza Convent Ganapoga Raia, Salcete, Goa. 35 Evileen Ferdinando D'Melo, House No.766, Near St. Tereza Convent Ganapoga Raia, Salcete, Goa. 36 Shri Narayan Shivaji Thorwat, Shivam, Padmanarayan Estates, Opp. Sitara Apartments, :6: Near Mutt, Gogol, Margao-Goa. 37 Smt. Shoba Narayan Thorwat, Shivam, Padmanarayan Estates, Opp. Sitara Apartments, Near Mutt, Gogol, Margao-Goa. 38 Ashok Tukaram Korgaonkar, 'Tatshree', Murida, Fatorda, Margao, Goa. 39 Manisha Ashok Korgaonkar, 'Tatshree', Murida, Fatorda, Margao, Goa. ...... Respondents. Shri A. F. Diniz, Advocate for the petitioners. CORAM : F. M. REIS, J DATE : 30 th NOVEMBER, 2011 . ORAL JUDGMENT Heard Shri A. F. Diniz, learned Counsel appearing for the petitioners. None for the respondents though served for final disposal of the petition at the stage of admission. 2. Rule. Heard forthwith. 3. The above petition challenges the order dated 05.08.2008 passed by the IIIrd Additional Civil Judge Senior Division, Margao, in Special Civil Suit No. 85/2005/III whereby the application for amendment filed by the :7: petitioners came to be rejected. 4. Shri Diniz, learned Counsel appearing for the petitioners has assailed the impugned order essentially on the ground that the petitioners have filed the application for amendment to incorporate some subsequent events and seek for restoration of possession of the suit property. The learned Counsel has further pointed out that the learned Judge on the basis of prima facie findings arrived at whilst disposing of the application for temporary injunction refused to grant the application for amendment filed by the petitioners. The learned Counsel further pointed out that the application was filed when the hearing of the suit had not began and as such there was no reason for the learned Judge to refuse leave to the petitioners to amend the plaint. The learned Counsel further pointed out that by incorporating the amendment, the nature of the suit does not change and as such the learned Judge has erroneously come to the conclusion that the nature of the suit would change by the proposed amendment. The learned Counsel further pointed out that up to this date the evidence/hearing of the suit had not began and as such no prejudice would be caused to the respondents in case leave to amend is allowed. The learned :8: Counsel further pointed out that the learned Judge has acted in material irregularity while passing the impugned order which calls for interference of this Court under Article 227 of the Constitution of India. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside. 5. The respondents though served for final disposal of the petition at the stage of admission have failed to remain present at the time of hearing of the petition. 6. On perusal of the plaint filed by the petitioners, a declaration has been sought to the effect that the petitioners are the owners in possession of the suit property and that the respondent nos. 1 to 35, 38 and 39 have no right, title or interest thereon. A further declaration has been sought to the effect that the sale deed dated 29.04.2005 executed by the respondent nos. 1 to 7 and 13 in favour of respondent no.38 dated 09.05.2005 is null and void. Consequential reliefs have also been sought for direction to the Sub-Registrar, Margao to cancel the registration of the said sale deed. The petitioners have also prayed for an injunction restraining the respondent nos. 1 to 35, 38 and 39 from interfering with the peaceful :9: possession and enjoyment of the suit property by the petitioners. A further declaration to declare a decree dated 22.07.1996 as non-est/not enforceable has also been sought in the suit. It is not in dispute that the application for temporary injunction filed by the petitioners came to be rejected essentially on the ground that the petitioners had failed to establish prima facie that they were in possession of the suit property. As such, it appears that the petitioners have thereafter filed the said application for amendment of the plaint to incorporate in the original plaint some subsequent events inter-alia to the effect that the respondents especially respondent nos. 38 and 39 have forcibly dispossessed the petitioners from the suit property. Consequential reliefs have also been sought to the effect that the respondents be directed by mandatory injunction to demolish some structures and for restoration of free and peaceful possession of the suit property. 7. Considering the nature of the suit filed by the petitioners and the additional pleadings sought to be incorporated in the plaint and the additional reliefs sought by the petitioners, I find that the learned Judge was not justified to come to the conclusion that the nature of the suit would :10: change in case leave to amend the plaint is allowed for the petitioners. The cause of action of the suit remains the same and merely because additional reliefs were sought on the basis of some subsequent events, by itself do not change the nature of the suit. The law is well settled that in a suit based on title, the owners thereof are always entitled to seek a restoration of possession if they are so entitled. Hence, considering the nature of the suit filed by the petitioners, I find that the learned Judge was not justified to refuse the leave to the petitioners to amend the plaint to incorporate the additional pleadings and additional reliefs as sought for in the application dated 01.08.2007. The learned Judge was not justified to refuse the leave to the petitioners on the basis of the prima facie findings arrived at by the Court while disposing of the application for temporary injunction. The merits of the claim put forward by the petitioners in the amended plaint cannot be adjudicated by the Court at the time of granting leave to amend the plaint. No prejudice would be caused to the respondents in case the application for amendment is granted as the respondents are entitled to file an additional written statement and raise all the contentions available to them in law to dispute the averments as well as the reliefs sought by the petitioners by the amended :11: pleadings. In case the impugned order is allowed to stand grave prejudice shall occasion to the petitioners. As such, the petitioners ought to have been given leave to amend the plaint subject to payment of costs to the respondent nos. 1 to 12 who opposed the said application. 8. In view of the above, I pass the following : O R D E R (i) The impugned order dated 05.08.2008 is quashed and set aside. (ii) The application for amendment filed by the petitioners dated 01.08.2007 for leave to amend the plaint is allowed subject to payment of costs of Rs.2500/- as condition precedent to the respondent nos. 1 to 12. (iii) The petitioners are permitted to deposit the costs in the Trial Court before carrying out the amendment to the plaint. (iv) The respondents would be entitled to file an additional written statement and raise all the contentions available to them in law. (v) Rule is disposed of in above terms. :12: (vi) The petition stands disposed of accordingly. F. M. REIS, J at*