1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 709 OF 2009 Francisquinha Das Merces Fernandes e D'Souza, 624/c, La Citadal, Dona Paula, Goa .. Petitioner Versus 1) The Confrarias de Santissimo Sacramento Nossa Senhora De Penha de Franca, represented by the Attorney Penha de Franca Church, Britona, Goa 2) Archdiocese of Goa, through the Archbishop, Bishop House, Altinho, Panaji, Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. Xettigar, Advocate for the petitioner. Shri Mahesh Amonkar, Advocate for the respondent No.1. CORAM :- U. D. SALVI, J. DATE : 23 rd February, 2010. ORAL JUDGMENT : Heard. Rule, made returnable forthwith. Taken up for final hearing by mutual consent of the parties. 2 2. Order dated 19.9.2009 passed by the learned CJSD, Mapusa in Special Civil Suit No.108/2005/A refusing amendment to the plaint finds challenge in this writ petition. 3. Perusal of the plaint, a copy of which is annexed to this petition at page No.24, reveals that the petitioner/ plaintiff has instituted the said suit for permanent injunction restraining the respondents/ defendants from carrying out any construction on the suit access and also for a declaration that the access referred to in the plaint is access of necessity and only access available to the plaintiff's property. It is the case of the petitioner/ plaintiff that the suit property admeasuring 891 square meters of the property surveyed under Survey No.77/1 Part situate Sirula Malim, Penha-De- Franca Village Panchayat was acquired on lease dated 13.10.1993 from the respondent /defendant No.2- Archdiocese of Goa and access to the said property from National Highway, Panaji-Mapusa lays through the portion of the lands marked in grey colour in the plan tendered with the deed of lease at Exh.A to the plaint. It appears that the petitioner after having lost in the battle to claim temporary injunction against the respondents in respect of the said access preferred an Appeal from Order No.90/2006 in this 3 Court and thought it fit to withdraw the said appeal with liberty to amend the plaint in order to mould the reliefs for claiming right through property of the respondent No.1/ defendant under Article 2309 of Portuguese Civil Code and thereafter, seeks relief of temporary injunction in light of the amended plaint. 4. The petitioner/ plaintiff, thereafter, preferred an application for amendment proposing the deletion of Para Nos. 4, 14 and 20 as well as addition of Para Nos. 4A, 4B, 4C, 27A. Substitution of prayer clauses by deleting the original prayer clauses was also sought in the said application for amendment. 5. In light of the objections to the proposed amendment saying that the amendments sought are designed to introduce entirely new cause of action inconsistent with the pleadings in the original plaint and set up entirely new case vide reply dated 19.4.2008, the learned Civil Judge observed that deletion of para Nos. 4, 14 and 20 was intended to set up a totally new case, and the substitution and addition of the paras resulted in setting up of a new case of the existence of the access and its use by the respondent/ 4 defendant No.2 over 60 years. 6. Learned Senior Advocate Lotlikar for the petitioner submitted that the trial has not yet commenced and by rectifying the pleadings and adding to it the factual contents would not amount to setting up of any new case, and the facts pleaded would be open to contest in the trial that would be commencing thereafter. Learned Advocate Amonkar for the respondent No.1/ defendant pointed out inconsistencies in the alignment of the access shown in the plan tendered with Lease Deed at the time of institution of the suit and of the access shown in plan, now sought to be introduced by way of amendment at annexure 'X' and, therefore, in his view, entirely new case has been set up by the petitioner/ plaintiff with the proposed amendments. 7. Original para No.4 of the plaint speaks of a Lease Deed and a plan therewith showing suit access to the said property from National Highway Panaji-Mapusa. This plan reveals a passage passing through Survey No.89/5 belonging to the respondent / defendant No.1. Para 14 talks about the sale of the property to the plaintiff by the defendant No.2 along with the said access on the northern side. It can be 5 seen with reference to para No.2 in the plaint that the property has been acquired by the petitioner/ plaintiff under a Lease Deed and it was not the transaction of sale. Para No.20 again makes reference to the suit access as one demarcated in grey lines. Essentially, the access, which is talked about in said paras is the access, which passes through Survey No.89/5 belonging to the respondent/ defendant No.1. 8. Perusal of the paras to be added to the plaint shows that the petitioner/ plaintiff is trying to elaborate the facts concerning the said access, essentially maintaining the case of an access passing through the property of the respondent/ defendant No.1. It is correct that the alignment of the access shown in the plan at Annexure A is not exactly the same as seen in the plan – Annexure X. However, such change in alignment does not bring about any deviation from the basic case of an access passing through the property of the defendant No.1. By such amendment, right of the defendant No.1 to make use of the plan Annexure A in contesting the claim made to the access by the petitioner, is not taken away. Ultimately, it is for the petitioner/ plaintiff to prove her case. 6 9. No wrong is done if the petitioner/ plaintiff seeks an alternative relief for purchase of such an access under Article 2309 of Portuguese Civil Code on the basis of the facts of the case as pleaded. No attempt to introduce a case based on new cause of action inconsistent with the original case is found to be made by the petitioner/ plaintiff by way of proposed amendment. The order dated 19.9.2009 passed by CJSD, 'A' Court at Mapusa is, therefore, set aside. Permission is granted to carry out the amendment as proposed. Rule is made absolute in terms of the aforesaid directions with no order as to costs. U. D. SALVI, J. SMA