-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 556 OF 2009 1. Shrikant Atchut Naik Dalal, alias S. A. Naik Dalal, major in age and his wife 2. Mrs. Shrikant Atchut Naik Dalal, major in age, Both r/o H. No.258, Comba, Margao, Goa. …... Petitioners V e r s u s 1. Mr. Antonio Santana Vaz, 58 years, Medical Representative, (since deceased through legal heirs) and his wife; 1a) Avinash G. Vaz, bachelor, r/o H. No.7, Aquem Baixo, Navelim, Salcete, Goa. 1b) Ashlon Vaz, bachelor, r/o H. No.7, Aquem Baixo, Navelim, Salcete, Goa. 2. Mrs. Estrelita Ferly Vaz, housewife, 50 years, Both r/o H. No.7, Ward Aquem - Baixo, Navelim, Salcete, Goa. 3. Mrs. Elizabeth Vaz, retired, 58 years 4, Mr. Joseph L. R. Vaz, service, 34 years, and his wife 5. Mrs. Daphne Vaz, housewife, 29 years 6. Mr. Elias R. Vaz, -2- service, 32 years All r/o H. No.8, Ward Aquem - Baixo, Navelim, Salcete, Goa. 7. Mrs. Frida Vaz, housewife, 28 years and her husband 8. Mr. Roshan Mirand, 28 years, service Both r/o H. No.313, Dandora, Cuncolim, Salcete, Goa 9. Mrs. Lourena Vaz, service, 31 years and her husband 10. Mr. Ronny Rodrigues, service,major of age, Both r/o H. No.289, Calcondem, near Fly Over Bridge, Margao, Goa 11. Mr. Blasio Clemente Diniz, 82 year, Landlord (since deceased through legal heirs), and his wife i) Sr. Iova Dinis, (PBVM), Delhi, ii) Mrs. Ina Dinis, married to iii) Mr. Rosenda Antao, Both r/o Fatorda, Margao, Goa. iv) Mrs. Isabela Dinis, married to v) Mr. Leslie Both r/o Panaji, Goa. vi) Mrs. Tecla Diniz, married to vii) Mr. Bernard Rodrigues Both r/o Aquem Baixo, Navelim, Salcete, Goa. -3- 12. Mrs. Carmina Olga Dias, Both r/o H. No.14, Aquem- Baixo, Navelim, Salcete, Goa. …... Respondents Mr. Nitin Sardessai, Advocate for the Petitioners. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondent nos. 1 to 10 Ms. Sudha Pai Kir, Advocate for Lrs of Respondent nos.11(i to vii) and Respondent no.12. CORAM: R. M. SAVANT, J. DATE : 18 th November, 2009. ORAL JUDGMENT Rule, with the consent of the parties made returnable and heard forthwith. 2. This Petition takes exception to the Order dated 01.09.2009, passed by the learned Civil Judge, Senior Division, 'A' Court, Margao, by which Order, the application filed by the Petitioners i.e. the original Defendant nos. 1 and 2 for amendment of written statement and for bringing the documents in the form of revised sanctioned plan and the letter of the Panchayat, came to be rejected. 3. The facts to be stated are thus : The Respondent nos. 1 to 10 herein are the original plaintiffs, who have filed Special Civil Suit No. 121/2002, claiming a right of pre-emption to purchase the property surveyed under no. 33/4, belonging to the Defendants and for a further relief that the Sale Deed dated 15.05.2002 -4- registered under no. 1846 at page 214 to 240 of book 1 Vol 1341 be declared null and void and for a declaration that the plaintiffs have a right of easement over the property surveyed under no. 33/4 belonging to the Defendants and that the plaintiffs are entitled to use the suit access as shown in the plan, Exhibit B. The Petitioners herein, who are the main contesting Defendants, filed their written statement and denied the claim of the plaintiffs in toto both as regards to right of pre-emption and the easementary rights claimed by them 4. The parties went to trial. The issues were framed on 22.07.2004. The cross examination of the plaintiffs' witness, Pw.1, was partly concluded on 29.11.2008. It appears that the Petitioners herein, who are developing the said survey no. 33/4, filed an application for revision of the plan submitted by them to the concerned Gram Panchayat. The said revised plans were sanctioned by the concerned Gram Panchayat on 22.11.2008. In the revised plan, the Petitioners have provided for an access along side the boundary of the said plot of land which, according to them, can be used by the plaintiffs i.e. the Respondent nos. 1 to 10 herein. 5. In the said Special Civil Suit No. 121/2002, an application was moved by the plaintiffs for temporary injunction. The said application was allowed by the Trial Court and except the pathway shown by the plaintiffs in the map annexed to the plaint, the Petitioners herein were allowed to develop rest of the property. The order was challenged in Appeal by the Petitioners by filing Appeal From Order no. 38/2004. As, by that time, the revised plans were -5- already sanctioned, reliance was sought to be placed on the said revised plan in the said Appeal to get the Order granting temporary injunction modified. It appears that the said submission of the Petitioners herein was not accepted in the Appeal and the position, as prevailing by virtue of the injunction granted on 05.12.2005, was maintained by this Court while disposing of the Appeal from Order dated 21.07.2009, however, the hearing of the said suit was expedited and was directed to be disposed of within a period of six months from the said date i.e. 21.07.2009. 6. The Petitioners, thereafter, during the pendency of the said Appeal From Order, had moved an application before the Trial Court for amendment of the written statement and for producing the revised plan on record. The said application was filed on 25.06.2009. 7. The said application was resisted by the original plaintiffs. The main ground of resistance was that the same was not permissible in view of Order VI Rule 17 of the Civil Procedure Code as the trial had already commenced. The Trial Court considered the said application and by the impugned Order has rejected the same on two fold grounds namely, that the said amendment application had been moved after the trial had begun and does not satisfy the test of due diligence as contemplated in the said Order and since the condition for exercise of power under the Proviso to Rule 7 has not been satisfied, the said application could not be granted. The second ground was that by the amendment, the defendants were seeking to raise a -6- new defence. 8. I have heard the learned Counsel Shri Sardessai for the Petitioners and learned Senior Counsel Shri M. B. D' Costa for the Respondent nos. 1 to 10 herein. On behalf of the Petitioners, the principal submission that there is no bar under Order VI Rule 17 for permitting an amendment and for production of documents though the same was sought to be done after the trial has commenced. The learned Counsel further submitted that the Trial Court has proceeded on an erroneous premise that the test of due diligence has not been satisfied by the Petitioners herein. The learned Counsel submitted that since the revised plans could not be brought on record as the application was sanctioned by the concerned Gram Panchayat only on 22.11.2008, and therefore, could not be produced earlier hence, the test laid down in Order VI Rule 17 was satisfied. The learned Counsel further submitted that the Petitioners, who are the Defendants, were entitled to take alternate pleas in their written statement and the rejection of the said application on the ground that the same constitutes a new defence therefore could not be permitted by way of amendment. The learned Counsel relied upon the Judgment of a learned Single Judge of this Court reported in 2003(2) ALL M. R. 1040 in the matter of Badrinarayan Bansilal Somani vs. Shri Vinodkumar K. Shah, wherein it has been held relying upon the Judgments of the Apex Court that the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that the Courts are more generous in allowing amendment of the written -7- statement as the question of prejudice is less likely to operate in that event, and further the Defendant has right to take alternate plea in defence. It was, therefore, the submission of learned Counsel for the Petitioners that the said amendment application ought to have been allowed by the Trial Court. 9. The learned Counsel also relied upon the Judgment of the Apex Court reported in (2005) 6 S.C.C. 344, in the matter of Salem Advocate Bar Association, T.N. vs. Union of India, wherein the Apex Court was concerned with the amendments to the Civil Procedure Code which were brought into force from 01.07.2002. The Apex Court upheld the constitutionality of the said amendments. However, in so far as Order VI Rule 17 is concerned, the Apex Court has held that in so far as amendments after commencement of trial, it has to be shown that inspite of due diligence, amendment could not have been sought earlier. The learned Counsel for the Petitioners, therefore, submitted that the Trial Court has committed an error in rejecting the said application for amendment. 10. Per Contra, Shri D' Costa, the learned Senior Counsel appearing for the Respondent nos. 1 to 10 herein, i.e. the original plaintiffs, submitted that though the Trial Court has held against the Petitioners on the ground of due diligence and, on the ground of raising a new defence, which finding he supports. According to the learned Senior Counsel, the amendment sought to be introduced by way of said application, has no bearing on the suit in question as the easementary right is only one of the reliefs claimed. The main -8- substantive relief being the right of pre-emption claimed by the plaintiffs and the cancellation of sale deeds which have been executed in favour of the defendants, and therefore, if the said substantive relief is granted, the relief claimed by way of easementary right would become infructuous. The learned Senior Counsel, therefore, submitted that the impugned Order can be sustained on the said ground and therefore, no interference is called for in the writ jurisdiction. 11. Having considered the rival contentions, in my view, no fault could be found with the impugned Order of the Trial Court. The Petitioners/Defendants were seeking to bring on record the facts which have taken place subsequent to the trial having been commenced. The test of due diligence as envisaged under Order VI Rule 17 would be in respect of facts which were already in existence and could not be placed on record inspite of due diligence. The introduction of subsequent facts would therefore stand on a different footing and the party seeking amendment on the said basis cannot seek to introduce them by pleading that inspite of due diligence, they could not be placed on record as they were not in existence when the trial had commenced. The contention of the Petitioners, therefore, that as per the proviso to Order VI Rule 17, the due diligence test was satisfied by the Petitioners cannot be accepted. 12 In so far as the second ground on which the application is rejected by the Trial Court is concerned, namely that the defendants are -9- raising a new defence, the submission of the learned Counsel for the Petitioner is that the passage which is shown in revised plan is necessary to be brought on record in view of the fact that in the event the suit is decreed, the Trial Court can be guided by the passage which is already shown in the revised plan. In my view, the said submission cannot be accepted, the Petitioners having denied that the plaintiffs had any right of way from their property, now cannot be allowed to contend that in the event the suit is decreed, the passage which is shown on the revised plan can be made available to the plaintiffs. That would amount to allowing the defendants i.e. the Petitioners to take a new defence. The same would therefore be prejudicial to the plaintiffs. The said fact is also not necessary to be brought on record as the Trial Court would undoubtedly grant an appropriate passage on the basis of the evidence, in the event it decrees the suit only in so far as the easementary right claimed by the plaintiffs is concerned. 13. In so far as the submission of Shri D' Costa, learned Senior Counsel, that the said pleadings sought to be introduced by the amendment and the said documents sought to be produced, could have no relevance considering the substantive relief of pre-emption which is sought by the Respondent nos. 1 to 10 in the said suit i.e. I find considerable merit in the said submission. The substantive relief claimed in the suit being the right of pre-emption and cancellation of Sale Deeds, in my view, the amendment and the document sought to be produced have no relevance. Much less for the amendment being allowed after the trial has progressed substantially. The -10- finding of the Trial Court, therefore, on both the counts is unexceptionable as admittedly the trial has commenced and reached a stage where the evidence of the Pw.1 was partly concluded. Any amendment, at this stage, would therefore, jeopardize the trial which has already been expedited by this Court and has been directed to be completed within six months from July, 2009. 14. In that view of the matter, no case for interference in writ jurisdiction is made out. 15. The Petition is accordingly dismissed. Rule discharged. R. M. SAVANT, J. arp/*