-1- IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO.586/2006. Mrs. Sebastiana Escolastica Beatriz Nunes, Mendonca alias Beatriz Mendonca, widow of Miguel Jose Albino Maria Das Dores Mendonca, aged about 86 years, landlady, residing at Nunes Complex, Near Dr. Gaunekar Children's Hospital, P.O. Caranzalem, Tiswadi, Goa, herein represented by her lawful Constituted Attorney, Mr. Savio Nunes, son of late Luis Joao Nunes Dias, Caranzalem, Tiswadi, Goa. …...... Petitioners. Versus M/s Ravalnath Builders, A Partnership firm carrying on Business at Excelsior Chambers, First Floor, Opp. Vysha Bank, M. G. Road, Panaji, Goa 403 001, Represented by its Partner, Mr. Rajesh Harmalkar. …...... Respondent. Mr. M. B. Da'Costa Senior Advocate with Mr. J. A. Lobo, Advocate for the petitioners. Mr. A. R. Kantak, Advocate with Ms. Reshma Kantak, Advocate for the respondent. -2- CORAM :- S. J. VAZIFDAR DATE : 16th April, 2010. ORAL JUDGMENT This is a Writ Petition filed by the plaintiff challenging an order passed by the learned Civil Judge Senior Division, Panaji dated 28/11/2006 rejecting her application for amendment of the plaint. 2. The suit was inter alia for specific performance of an agreement dated 18/9/1995 and for cancellation of certain agreements entered into by the respondents with third parties. The suit was filed on 15/3/2005. The respondents filed their written statement on 5/4/2005. In the written statement, the respondents admitted the execution of the suit agreement. They however, stated that subsequently a further agreement was allegedly signed between the parties which substantially altered the terms and conditions of the suit agreement. It was further alleged that the respondents had performed their obligations as per the alleged subsequent agreement. 3. The contention in the written statement therefore -3- constitutes the defence to the plaintiff's claim for specific performance of the alleged agreement dated 18/11/1995. 4. In view of these allegations, the petitioner filed an application for amendment of the plaint, seeking now to also challenge the alleged agreement dated 20/3/1996. The application for amendment was rejected by the impugned order inter alia on the ground that the same was filed after considerable delay. As stated earlier the written statement was filed on 5/4/005. The trial commenced on 28/9/2006. The evidence of the PW1 was closed on 16/11/2006. The application for the amendment was thereafter filed only on 20/11/2006. 5. In these circumstances, I do not consider it necessary to interfere with the impugned order at this stage. It is always open for the petitioner to challenge this order from the trial judgment and decree if necessary. It is also a moot point as to whether it was at all necessary for the plaintiff to amend the suit in order to succeed in obtaining the reliefs claim in the suit as filed for. The reliance upon -4- the alleged subsequent agreement of 20/3/1996 was only a defence to the plaintiff's claim The plaintiff is not bound by the statement in the written statement including as to the alleged agreement. Even in the absence of the amendment, the plaintiff is always at liberty to challenge the same in the course of evidence and even otherwise. 6. For the purpose of this petition it is not necessary to consider Mr. M. D'Costa's submissions on behalf of the petitioner on merits. The same must be decided in the suit. 7. With the above clarification, the Writ Petition is disposed of with no order as to costs. The stay is therefore vacated. The parties shall in the first instance appear before the Trial Court on 26/4/2010 at 10.00a.m and thereafter as directed by the learned Judge. S. J. VAZIFDAR, J. vn*