1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.727 OF 2009 1. Mr. Antoniio Joao Hermano de Souza Age 86 years, son of late, Guilherme Caetano Elisario de Souza, Residing at House no.11/G-2/3, Mahanagar Society, Madel, Margao, Salcete, Goa (Deceased) 2. Smt. Flora de Almeida e Souza Aged 67 years, wife of Antonio Joao Hermano de Souza, Residing at House no.11/G-2/3, Mahanagar Society, Madel, Margao, Salcete, Goa since deceased through legal heirs, a) Mrs. Terezinha do Menino Jesus De Souza e Sa, alias threza D'sa and her husband ; b) Oswald Anselmo L. D'Sa, Flat No.G-5, Ground Floor, Marrie Manson, Per Seraulim, Seraulim, Goa. c) Lucio Neville Jude D'Souza And his wife, d) Nadia de Souza Both residents of Borda, Margao – Goa. .. Petitioners. Versus 1. Mr. Shriker Pandainath Naik Kurade, Aged 45 years, resident of D-4, Rukmini apartments, Fatorda, Margao, Goa. 2. Smt. Bharati Shriker Naik Kurade Aged 43 years, wife of Shriker, Pandarinath Naikk Kurade, R/o. D-4, Rukmini Apartments, Fatorda, Margao, Goa 2 3. M/s. Royal Hotel, A registered partnership having Its Office at No.38/A in the Premises known as 'Casa Menezes' Situated on the First Floor, Clovis de Costa Street, Margao, Goa. .. Respondents Mr. Arun Bras De Sa, Advocate for the petitioners. Mr. S. G. Dessai, Senior Advocate with Mr. Pavitran, Advocate for respondent no.1. None for other respondents. Coram :- A. P. LAVANDE, J. Date :- 6 th Octo ber, 2010 ORAL JUDGMENT : Rule. By consent, heard forthwith. 2. By this petition, the petitioners challenge the order dated 24th June, 2009 passed by the Civil Judge, Junior Division, 'C' Court, Margao in Regular Civil Suit no.78/2001/ C disallowing the application for amendment filed by the petitioners/ plaintiffs. In the year 2001, the plaintiffs filed the above suit for dissolution of the partnership firm and for accounts. The defendants contested the suit by filing written statement. Thereafter, for some time, the matter was adjourned sine die. In March, 2009, the plaintiffs filed an application seeking certain amendments in the body of plaint 3 as well as in the prayer clause, by which the money decree was also sought against the defendants. The application was opposed by the defendants and by the impugned order, the learned Trial Judge dismissed the application primarily on the ground that the application was filed belatedly after the period of about 8 years and after a period of 3 years since cause of action for proposed claim for accounts arose. 3. Mr. De Sa, learned Counsel appearing for the petitioners submitted that serious prejudice would be caused to the petitioners in case the proposed amendment is not allowed. He further submitted that it is well settled that the application for amendment has to be liberally granted by the Court unless serious prejudice is caused to the defendant by allowing the application. He further submitted that the trial in the suit filed by the plaintiffs has not begun although the suit was filed in the year 2001 and as such, the learned Trial Judge has erred in dismissing the application for the amendment solely on the ground of laches. Mr. De Sa relied upon the judgment of the Apex Court in the case of Sambhavnath Jain Vs. Mohanlal; 2003(9) SCC 340. 4. Per contra, Mr. Dessai, learned Senior Counsel appearing for respondent no.1 submitted that although 4 amendment application has to be liberally allowed, the fact remains that no reasons have been given by the trial Court for rejecting the application and since discretion has been exercised by the Trial Court, this Court should not entertain the writ petition against the impugned order. In support of his submissions, the learned Senior Counsel relied upon the following judgments in the case of South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and others; (2008)14 SCC 632 and Radhika Devi Vs. Bajrangi Singh and others; (1996)7 SCC 486. 5. I have carefully considered the rival submissions and perused the record. 6. Admittedly, the suit was filed for dissolution of partnership and accounts. By the proposed amendment, the plaintiffs seek recovery of certain amounts from the defendants. No doubt, the application for amendment was filed belatedly. However, the fact remains that the trial of the suit has not started. It is well settled by a catena of decisions of the Apex Court that at pre-trial stage, the Trial Court should exercise its discretion in favour of granting an application for amendment filed by the plaintiffs and unless serious prejudice is caused and/or the amendment is not 5 necessary for deciding the real matters in controversy between the parties, the application deserves to be rejected. 7. In the case of South Konkan Distilleries (supra) relied upon by Mr. Dessai, the amendment was made after a period of 13 and ½ years, which was rejected by both the Courts. The Apex Court upheld the order. In the said judgment, the Apex Court has further held that even amendment which is arguably time barred, should be permitted and issue must be framed on the question whether amended claim was barred by law of limitation. No doubt, in the said case, the Apex Court held that this principle was not applicable. Having regard to the factual background in the case of Radhika Devi, the Apex Court held that amendment of the pleadings, which defeats the rights of either parties acquired by bar of limitation, cannot be allowed. 8. As stated above, in the present case, the question whether money claim made by the plaintiffs by way of amendment are barred by limitation, can definitely be gone into by the Trial Court by framing appropriate issue. I am in agreement with Mr. De Sa that the impugned order would cause serious prejudice to the plaintiffs since by the impugned order the petitioners have been deprived of their 6 right to claim amounts from the defendants, which according to the plaintiffs, are due to them. In my opinion, the learned Trial Judge has not exercised jurisdiction in accordance with settled law. Therefore, the impugned order deserves to be quashed and set aside subject to imposition of costs. 9. In the result, therefore, the impugned order dated 24th June, 2009 passed by Civil Judge, Junior Division, 'C' Court, Margao is quashed and set aside. Consequently, the application for amendment filed by the plaintiffs in March, 2009 is allowed subject to plaintiffs paying costs of Rs. 5,000/- to respondent no.1, who has contested the matter in this Court. The costs shall be deposited in the Trial Court within a period of four weeks. Liberty to respondent no.1 to withdraw the costs after they are deposited. The plaintiffs shall carry out amendment within a period of four weeks, after depositing the costs in the trial Court. 10. Rule is made absolute in aforesaid terms. A. P. LAVANDE, J. SMA