:1: IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 443 OF 2003 1. Shrikrishna Rajaram Thakur ( since deceased ) through his heirs - a. Damodar Shrikrishna Thakur ( son ) b. Bina Damodar Thakur ( daughter in law ), both r/o Ground Floor, Bandekar Bldg., Altinho, Panaji Goa. c. Vijaya Surendra Desai ( daughter ) d. Surendra G. Desai ( son in law ) both major, r/o 2-9 Pelican Apts., Fr. Agnelo Road, Panaji Goa. e. Anja Saresh Lotlikar ( daughter ) f. Saresh Dinanath Lotlikar ( son in law ) both major having office at 3rd Floor, Velho Bldg., Opp. Municipal Garden, Panaji Goa. g. Lalita Deepak Mane ( daughter ) h. Deepak Mane ( son in law ) both major, r/o Ground Floor, Ramnath Bldg., Opp. Institute of Psychiatrist, Altinho, Panaji Goa. 2. Vasudeo Shivram Raikar, major, married, residing at Tonca, Caranzalem, Goa. … Petitioners V e r s u s 1. Maria Lalita Braganza, major, d/o Alvaro Jose Elvino de Braganza, 2. Leela Filomena Braganza, major, d/o Alvaro Jose Elvino de Braganza, :2: 3. Ashok Anthony Braganza, major, son of Alvaro Jose Elvino de Braganza, all r/at Candolim, Bardez Goa. …. Respondents Shri S. D. Padiyar, Advocate for the petitioners. Shri A. F. Diniz, Advocate for respondent nos. 1 and 2. CORAM : F. M. REIS, J DATE : 8 th NOVEMBER, 2011 . ORAL JUDGMENT Heard Shri S. D. Padiyar, learned Counsel appearing for the petitioners and Shri A. F. Diniz, learned Counsel appearing for the respondent nos. 1 and 2. 2. The above petition challenges the order dated 18.10.2000 passed by the learned Civil Judge Senior Division, Panaji, in Civil Misc. Application No. 204 of 2000 in Special Civil Suit No. 173/87 whereby the application for amendment filed by the petitioners came to be rejected. 3. The petitioners filed the suit which is styled as suit for specific performance and inter-alia sought for the following :3: reliefs :- (a) For a decree of specific performance directing the defendants to perform their part of the agreement dated 13.7.84 Exhibit P-2 executed between the plaintiffs and the defendants and sell the suit properties to the plaintiffs by giving them a clear and marketable title in respect thereof as against the payment of Rs.15,70,000/- by the plaintiffs in terms of the said agreement. (b) For a permanent injunction restraining the defendants, their servants and agents or any person acting on behalf of any of them from in any manner transferring, alienating, charging, encumbering the suit properties in favour of any third party, directly or indirectly until the sale of the suit properties unto the plaintiffs in terms of the agreement dated 13.7.84, between the parties. (c) For a temporary injunction in terms of prayer (b) above. (d) For an ex-parte injunction in terms of prayer (b) and (c) above. (e) For Costs. (f) Any other order in the circumstances of the case. :4: 4. After the respondents filed their written statement, the suit filed by the petitioners came to be decreed ex-parte by judgment and decree dated 18.11.1995. But however this Court by judgment dated 15.03.2000 in First Appeal No. 18 of 1996 set aside the ex-parte decree and remanded the suit for fresh trial before the learned Trial Judge after framing of the issues. In the meanwhile, the petitioners filed an application for amendment of the plaint to interpret the events that have transpired and came to the knowledge of the petitioners during the pendency of the proceedings more particularly after the suit came to be remanded before the learned Judge. Draft amendment was also attached to the application and inter-alia, reliefs were also sought to be incorporated in the suit for specific performance against the intended new defendant nos. 7 and 8 in respect of the suit property as well as for a claim of damages in addition to other amount which according to the petitioners they are entitled to claim from the respondents as well as the intended new parties sought to be impleaded. 5. The respondents opposed the said application essentially on the ground that by the proposed amendment, the cause of action would change and further that the :5: pleadings sought to be incorporated were inconsistent with the earlier pleadings in the plaint. It is further their contention that the parties sought to be impleaded have no nexus with the alleged agreement executed between the petitioners and the respondents and further that such parties are not proper and/or necessary parties to the suit. Further, the respondents claimed that the claim sought to be incorporated is barred by law of limitation and as such the petitioners are not entitled to seek any leave to amend the plaint. The learned Judge by the impugned order dismissed the application filed by the petitioners for leave to amend the plaint. 6. Shri S. D.Padiyar,learned Counsel appearing for the petitioners has assailed the impugned order and pointed out that by the proposed amendment, the petitioners are seeking to incorporate the facts which came to their knowledge during the pendency of the proceedings. The learned Counsel further pointed out that only after the matter came to be remanded to the learned Trial Judge, the petitioners learnt about the subsequent events as well as some facts which were not to their knowledge at the time of filing of the suit and which are necessary for proper adjudication of the matter in :6: controversy. The learned Counsel further points out that the proposed defendant nos.6 to 12 are the persons who have acquired right to the suit property during the pendency of the suit and as such any decree which may be passed in the suit would affect their claim in the suit property and as such they are necessary parties to the suit filed by the petitioners. The learned Counsel further points out that the relief to claim a specific amount of money as well as the claim for damages is in accordance with the provisions of the Specific Relief Act and the petitioners are entitled to incorporate such claim at any stage of the suit. The learned Counsel further points out that the learned Judge has totally misdirected itself whilst passing the impugned order without considering the fact that the proposed amendments are in accordance with the provisions of the Specific Relief Act and further that such proposed amendment does not in any way change substantially the pleadings in the plaint. The learned Counsel further points out that as far as the claim of the respondents that the reliefs are barred by law of limitation it is open to the Court to leave such objection open and the respondents can always raise such contention in the additional written statement to the amended plaint. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside. :7: 7. On the other hand, Shri A. F. Diniz, learned counsel appearing for the respondent nos. 1 and 2 has supported the impugned order. The learned Counsel has submitted that by the proposed amendment, the petitioners are trying to revise the plaint filed by the petitioners which is not permissible in law. He further points out that the proposed amendment is not in consonance with the original pleadings and totally changes the nature of the suit as well as the cause of action. The learned Counsel further points out that admittedly there is no nexus between the petitioners and the respondent nos. 6 to 12 and as such the question of claiming that they are necessary parties to the suit is totally misplaced. The learned counsel further points out that the parties sought to be impleaded in the suit are parties who have independent right in the suit property and as such making them parties to the suit would necessarily change the nature of the suit as it would involve the dispute of title which is not permissible in law. The learned Counsel as such submitted that the above petition deserves to be rejected. 8. As stated herein above, the suit filed by the petitioners is for specific performance of agreement dated 13.07.1984 and seeking a direction to sell the suit property to :8: the petitioners. By the application for amendment, the petitioners desire to incorporate some extensive pleadings by amending the plaint on the ground that they had no knowledge about the said facts while filing the civil suit. On perusal of draft amendment, the petitioners desire to amend the cause title as well as to incorporate some additional pleadings in respect of suit filed in the year 1989 by the original defendant no.6 against the defendant no.1 and one M/s. Mahalaxmi Enterprises. The remaining part of the pleadings sought to be incorporated are with regard to some allegations which transpired during the pendency of the suit filed by the petitioners. There are further allegations with regard to some sale deeds in respect of the suit property which according to the petitioners are fraudulent. Besides that reliefs are sought to be incorporated which inter-alia include an alternative relief for a specific amount of damages and for additional amount as sought to be incorporated in the pleadings. Considering the nature of the suit and the fact that the suit was filed in the year 1987 and the nature of the pleadings sought to be incorporated, I find that the learned Judge was not justified to come to the conclusion that the petitioners are not entitled for leave to amend the plaint. The learned Judge was not justified to come to the conclusion that :9: totally a new case is sought to be incorporated. The proposed pleadings appear to be with regard to the suit property and considering the nature of the suit filed, such pleadings would be material to ascertain as to whether the petitioners are entitled for the reliefs sought in the suit. The findings of the learned Judge to the effect that the prayers (aaa) and (Aaaa) are rejected on the ground that they are barred by law of limitation at this stage cannot be accepted. In the suit for specific performance, it is always open to the plaintiff to seek an alternative relief for damages or for additional amount as damages. The learned Judge was not justified to hold that by the proposed amendment there would be change in the original cause of action as the pleadings sought to be incorporated are in connection with the suit property and it cannot be said that the original cause of action would be changed in case the proposed amendment is allowed. But however with regard to the contention of Shri Diniz, the learned Counsel appearing for the respondents, whether the reliefs sought to be incorporated are barred by law of limitation are the issues which the learned Judge would have to be framed on the basis of additional written statement which may be filed by the respondents and as such the issue of limitation raised by the respondents on merits would be left :10: open to be decided in the suit. No prejudice would occasion to the respondents in case the leave to amend the plaint is allowed as the respondents would have an ample opportunity to file an additional written statement and raise the defences available in law to dispute the correctness of such averments. At this stage, the contention of Shri Diniz, learned Counsel appearing for the respondents with regard to the merits of claim sought to be incorporated by the proposed amendment cannot be considered and as such, such aspect will be dealt with by the learned Judge at the time of disposal of the suit. 9. Considering the facts and circumstances of the case, I find that the learned Judge was not justified to refuse the leave to amend the plaint. The petitioners as such are entitled for the leave to amend the plaint in the manner proposed in the draft amendment. Consequently, the impugned order passed by the learned Judge refusing leave to amend the plaint to the petitioners cannot be sustained and deserves to be quashed and set aside. 10. Shri Padiyar, learned counsel further points out that there is typographical error in the draft amendment application with regard to the prayer clause (a) which requires :11: to be corrected so as to clarify that such prayer is in addition to the original prayer which was already existing in the plaint and the same has incidental error which has crept up in the draft amendment. The request of the learned Counsel for correction is allowed accordingly. 11. In view of the above, I pass the following : O R D E R (i) The impugned order dated 18.10.2000 is quashed and set aside. (ii) The application for amendment filed by the petitioners dated 8.8.2000 is allowed. (iii) The petitioners are allowed to amend the pleadings in a manner as prayed for. (iv) The respondents are entitled to file an additional written statement. (v) All the contentions raised by the respondents with regard to the merits including the objections with regard to the joinder of the parties and limitation are kept open. (vi) Rule is disposed of in the above terms. (vii) The petition stands disposed of accordingly. (viii) The parties are directed to appear before the :12: learned Civil Judge Senior Division, Panaji, on 15th February, 2012 at 10.00 a.m. F. M. REIS, J at*