1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition no.647 of 2010 1. Mrs. Sushila Umesh Karn, wife of Mr. Umesh Karn, major, Indian National, residing at Flat No.S-1A, Milan Apartments, Caetano Albuquerque Road, near “Hotel Delmon”, Panaji - Goa. 2. Mr. Umesh Karn, major, Indian National, residing at Flat no.S-1A, Milan Apartments, Caetano Albuquerque Road, near “Hotel Delmon”, Panaji-Goa. ….. Petitioners V e r s u s 1. Mrs. Natasha D'Souza, wife of Mr. Marlon D'Souza, daughter of Inacio Gracias, major of age, Indian National, residing at “Bethel”, 417/3, Behind Hotel Casino, Alto Porvorim, Bardez-Goa. 2. Mr. Marlon D”Souza, son of J.P.T. D'Souza, major, residing at “Bethel”, 417/3, Behind Hotel Casino, 2 Alto Porvorim, Bardez-Goa. …. Respondents Mr. N. Sardessai, Advocate for the Petitioners. Mr. F.E. Noronha, Advocate for Respondents. Coram: A. P. Lavande, J. Date: 28th January, 2011. Reserved on : 19/1/2011 Pronounced on:28/1/2011. JUDGMENT: Heard Mr. Sardessai, learned counsel for the petitioners and Mr. Noronha, learned counsel for the respondents. 2. Rule. By consent, heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners challenge order dated 17/7/2010 passed by the Civil Judge, Senior Division, Panaji in Regular Civil Suit No.94/2005/B dismissing two applications (Exhibits 29 and 30) seeking amendment of the written statement and the counter claim. The 3 petitioners are the defendants and the respondents are the plaintiffs in the above suit and shall be referred hereinafter to as per their status before the trial Court. 4. Briefly the facts relevant for the disposal of the present applications are as under: The plaintiffs filed the above suit seeking eviction of the defendants on 10/10/2005. On 24/1/2006 the defendants filed written statement. On 18/4/2006, the trial Court framed issues and on 15/2/2007, the plaintiffs filed affidavit-in-evidence. Thereafter, on 28/6/2007 the defendants filed an application to take on record the counter claim which was allowed by order dated 18/3/2008. The plaintiffs filed written statement to counter claim on 15/4/2008 and thereafter additional issues were framed on 19/7/2008. On 29/8/2009, the defendants filed two applications Exhibits 29 and 30 seeking amendment of the written statement and counter claim which were 4 opposed by the plaintiffs by filing replies. By the impugned order, the learned trial Judge dismissed both the applications. Aggrieved by the said order the defendants have filed the present petition. 5. Mr. Sardessai, learned counsel appearing for the petitioners/defendants submitted that the learned trial Court has erred in dismissing the two applications seeking amendment which were of formal nature and no new case was set up by the proposed amendment. According to Mr. Sardessai the trial Court has misconstrued the scope of Order 6 Rule 17 of C.P.C and has erred in holding that the trial of the suit had already begun. He further submitted that the trial Court ought to have allowed both the applications for amendment and in any case the application for amendment of the counter claim ought to have been allowed since affidavit of evidence was filed prior to framing of additional issues in view of the counter 5 claim filed by the defendants. In support of his submissions, Mr. Sardessai relied upon the following judgments: I) Baldev Singh and Others Vs. Manohar Singh and another, (2006) 6 SCC 498. II) Bhagwandas s/o Kanhaiyyalal Bubna Vs. Shyamsunder s/o. Wasudeo Bubna and anr, 2010 (2) ALL MR 843. 6. Per contra, Mr. Noronha, learned counsel for the respondents supported the impugned order and submitted that the trial had already begun and merely because the counter claim was field at a later stage it cannot be a ground to allow the amendment applications which were filed after the affidavit-in evidence was tendered by the plaintiffs. Mr. Norohna further submitted that the plaintiffs do not desire to file additional affidavit inspite of the fact that the defendants have file counter claim. In support of his submission Mr. Noronha placed reliance upon the judgment of the Apex Court in the case of Vidyabai and Others Vs. Padmalatha and anr. 2009 (1) 6 ALL MR 471. 7. I have carefully considered the rival submissions, perused the record and the judgments relied upon. Before dealing with the rival submissions it would be appropriate to quote Order 6 Rule 17 as amended. The same reads as under: 17. Amendment of pleadings – 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 my 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: 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 7 raised the matter before the commencement of trial. 8. From the bare perusal of Order 6 Rule 17 C.P.C. it is clear that an application filed after the trial has commenced can be allowed only if the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case, as stated above the plaintiffs had already tendered affidavit-in-evidence and the trial Court allowed the counter claim almost after two years after filing of the written statement by the defendants. It is also pertinent to note that the application seeking amendment of the written statement and the counter claim were filed almost one and half year after the counter claim was filed. This being the position, in my considered opinion, it cannot be said that inspite of due diligence, the party could not have raised the matter by filing the amendment application before the commencement of trial. In the 8 present case, the trial had already begun since the plaintiff had filed affidavit-in-evidence. In my opinion, the ratio laid down in the case of Vidyabai (supra) relied upon by Mr. Norohna is squarely applicable in the present case. In the said case the Apex Court has held that filing of an affidavit in lieu of examination -in-chief of the witness would amount to”commencement of proceeding”. Merely because the defendant had chosen to file counter claim at a later state would not be a ground to hold that the trial in the suit had not begun. Merely because the counter claim was taken on record after the affidavit -in-evidence of the plaintiff was filed by the defendants, the same would not be a ground to allow the amendment sought even in relation to the counter claim. I do not find merit in the submission of Mr. Sardessai that the trial Court at least ought to have allowed the application for amendment of the counter claim, since the trial had already begun and in terms of Order 6 Rule 17 the trial Court had no 9 jurisdiction to entertain the amendment application to the written statement and to the counter claim. 9. In so far as authorities relied upon by Mr. Sardessai the same do not advance the case of the defendants. In the case of Baldev Singh(supra) the Apex Court held that a wide power and unfetted discretion has been conferred on the court to allow amendment of pleadings and amendment of the written statement ought to be allowed when no serious prejudice is shown to have been caused to the plaintiff. The Apex Court further held that commencement of the trial under Order 6 Rule 17 must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In the said case it appears that the trial of the suit had not begun. Therefore, the ratio laid down in the case of Baldev Singh (supra) would not advance the case of the petitioners. 10 Similarly, in the case of Bhagwandas Bubna (supra), the learned Single Judge of this Court allowed the amendment application which was rejected by the trial Court on the ground that the matter was fixed for recording of evidence. In the said case also the trial had not begun and therefore the said judgment also does not advance the case of the petitioners. 10. In view of the above discussion, I do not find any ground to interfere with impugned order in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. Resultantly, the petition is dismissed. However, the parties are directed to bear their costs. A. P. Lavande, J. Ap/-