1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS. 8 OF 2009 AND 691 OF 2008. WRIT PETITION NO.8 OF 2009. 1. Shri Armando Pereira, s/o. Santano Pereira, major, married, retired, 2. Smt. Sharayu Pereira, w/o Armando Pereira, housewife Both represented by their Attorney Shri Gomish Pereira, major of age, Both r/o Flat No.5, 2nd Floor, Pereira Building, St. Inez, Panaji, Goa. .... Petitioners. Versus 1. Shri Jude D'Souza, s/o John D'Souza, bachelor, Electronic Engg., aged 34 years (deleted by order dated 13.1.2009) 2. Shri Agnel D'Souza, s/o John D'Souza, bachelor, aged 30 years, Both r/o Flat No.4, 1st Floor, Pereira Building, St. Inez, Panaji, Goa 3. Shri Valeriano D'Souza, s/o John D'Souza, aged 38 years, Mechanic 4. Shri Cajetan D'Souza, s/o John D'Souza, aged 42 years 2 5. Shri Domnic D'Souza, s/o John D'Souza, aged 45 years, (deleted by order dated 13.01.2009.) All respondent Nos. 3 to 5 are residing at 14/15, Supariwala Mansion, St. Xavier Street, Parel, Bombay -12. All respondent Nos.2 to 5 are represented by Shri Jude D'Souza as their Power of Attorney 6. Shri Joao Sebastiao Pereira, s/o Santano Pereira, major, married, business 7. Smt. Joao Pereira, wife of Joao Sebastiao Pereira, housewife, Both residing at Boca-de- Vaca,Panaji, Goa. 8. Shri Francis Moreira, major, business,c/o Cristo Upholstry, Shop No.4, Pereira Building, St.Inez, Panaji, Goa. 9. Shri S. M. Dessai, major, business, c/o Deco Enterprises, Shop No.3, Pereira Building, St. Inez, Panaji, Goa. 10. Dena Bank (Deleted), Mahatma Gandhi Road, Panaji,Goa 11. Mr. Hanumant Chari, major, business, Auto Mechanic, Pereira 3 Building, St. Inez, Panaji, Goa. 12. Shri Subhash Chari, major,Auto Mechanic, Pereira Building, St.Inez, Panaji, Goa. 13. Dr. Shekhar Shirwaikar (Deleted), major, Physician, Flat No.2, Ground Floor, Pereira Building, St. Inez, Panaji, Goa. (The respondent Nos. 8 to 13 are deleted by order dated 13.01.2009) ... Respondents. Mr. M. S. Sonak with Mr. M. G. S. Khandeparkar, Advocates for the petitioners. Mr. G. R. Sharma, Advocate for the respondent No.6. Mr. G. Shirodkar, Advocate for the original plaintiff/ respondent Nos. 2 and 4. WITH WRIT PETITION NO. 691 OF 2008. 1. Shri Armando Pereira, s/o. Santano Pereira, major, married, retired, 2. Smt. Sharayu Pereira, w/o Armando Pereira, housewife Both r/o Flat No.5, 2nd Floor, Pereira Building, St. Inez, Panaji, Goa. .... Petitioners. Versus 1. Shri Jude D'Souza, s/o John D'Souza, bachelor, 4 Electronic Engg., aged 34 years (deleted by order dated 18.11.2008) 2. Shri Agnel D'Souza, s/o John D'Souza, bachelor, aged 30 years, Both r/o Flat No.4, 1st Floor, Pereira Building, St. Inez, Panaji, Goa 3. Shri Valeriano D'Souza, s/o John D'Souza, aged 38 years, Mechanic 4. Shri Cajetan D'Souza, s/o John D'Souza, aged 42 years 5. Shri Domnic D'Souza, s/o John D'Souza, aged 45 years, All respondent Nos. 3 to 5 are residing at 14/15, Supariwala Mansion, St. Xavier Street, Parel, Bombay -12. All respondent Nos.2 to 5 are represented by Shri Jude D'Souza as their Power of Attorney 6. Shri Joao Sebastiao Pereira, s/o Santano Pereira, major, married, business 7. Smt. Joao Pereira, wife of Joao Sebastiao Pereira, housewife, Both residing at Boca-de- Vaca,Panaji, Goa. 8. Shri Francis Moreira, 5 major, business,c/o Cristo Upholstry, Shop No.4, Pereira Building, St.Inez, Panaji, Goa. 9. Shri S. M. Dessai, major, business, c/o Deco Enterprises, Shop No.3, Pereira Building, St. Inez, Panaji, Goa. 10. Dena Bank (Deleted), Mahatma Gandhi Road, Panaji,Goa 11. Mr. Hanumant Chari, major, business, Auto Mechanic, Pereira Building, St. Inez, Panaji, Goa. 12. Shri Subhash Chari, major,Auto Mechanic, Pereira Building, St.Inez, Panaji, Goa. 13. Dr. Shekhar Shirwaikar (Deleted), major, Physician, Flat No.2, Ground Floor, Pereira Building, St. Inez, Panaji, Goa. (The respondent Nos. 8 to 13 are deleted by order dated 18.11.2008) .. respondents Mr. M. S. Sonak with Mr. M. G. S. Khandeparkar, Advocates for the petitioners. Mr. G. R. Sharma, Advocate for the respondent No.6 and 7. Mr. G. Shirodkar, Advocate for the original plaintiff/ respondent Nos. 2 and 4. CORAM :- C. L. PANGARKAR, J. 6 DATE OF RESERVING THE JUDGMENT: 26 TH FEBRUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT : 18 TH MARCH, 2009 . JUDGMENT : 1. These two writ petitions can be disposed of by a common judgment since the parties to both the petitions, are common. The petitioners are the original defendant Nos. 1 and 2 while the respondent Nos. 1 to 5 are the original plaintiffs and the respondent Nos. 6 to 10 are the original defendants. The parties shall hereinafter be referred to as the plaintiffs and the defendants. 2. The facts giving rise to these petitions, are as follows : The plaintiffs contend that they are the sons of late Paulina D'Souza, who died on 18.11.1972. By virtue of a deed of succession dated 07.03.1990, the plaintiffs have been declared as successor of late Paulina D'Souza. She was also known as Dorathina. The defendant Nos. 1 and 3 are the real brothers while the defendant Nos. 2 and 4 are their wives. The defendant Nos. 5 to 10 are the tenants in the suit 7 property. By virtue of sale deed dated 28.10.1967, the defendant No.3 Jose and Paulina D'Souza became the owner of the plot No.12 having an area of 488.25 square metres. In the year 1968-1969, said Paulina and Jose along with the defendant No.1, decided to construct a building in the property purchased by Paulina and the defendant No.3. Accordingly, plans were submitted to the Municipal Council for permission to make construction. Plan was sanctioned by the Municipal Council. The said sanction was granted in the name of Paulina and the defendant No.1, who was representing the defendant No.3 for the sake of convenience. Occupation certificate was also issued. The plaintiffs contend that this suit property was jointly owned by Paulina and Jose. They had spent equal amount for the construction of the said building. It is contended that the supervision and construction of the building, was entrusted to the defendant No.1 upon oral understanding. Paulina had paid a sum of Rs.61,668/- towards the costs of the completed work in the year 1970. For the construction of the second floor, the parties were short of funds and, therefore, they decided to obtain a loan of Rs.40,000/- from the bank and accordingly, ground floor of the suit building, was mortgaged with the bank and the loan of Rs.40,000/-, was obtained. It was also 8 agreed that rent of the ground floor, collected by the defendant No.1 should be utilised for construction of the first floor. The mother of the plaintiffs had executed a General Power of Attorney in favour of the defendant No.1 to enable to him to collect rent and supervise the construction work. The plaintiffs submit that the defendant No.1 has been collecting the rent, but he never gave any accounts to the plaintiffs in spite of repeated demands. The plaintiffs ultimately, came to Goa and they found that the defendant Nos. 1 and 3 had refused to cooperate with the plaintiffs. Through the intervention of one Mariano, the plaintiffs got the possession of one of the flats. The plaintiffs prayed for a decree of Rs.4,94,974/- towards the rent illegally collected by the defendant Nos. 1 and 3 and for a declaration that the plaintiffs are the co-owners of the flat Nos. 2,4,6 and shop No.3 and 4 in Pereira Building. 3. The suit was resisted by the defendant No.1. It is the contention of the defendant No.1 that although the plot was purchased in the name of the defendant No.3, the entire consideration was paid by the defendant No.1. He is the exclusive owner of the suit property. Neither the plaintiffs nor the defendant No.3 have any right in the suit property. 9 The entire construction was done by the defendant No.1 and he had spent for the same. It is further contention of the defendant No.1 that the construction company, to whom a contract was given for construction, had filed a suit against the defendant No.1 and at that time, neither the plaintiffs nor the defendant No.3 came forward to pay the amount and the defendant No.1 had to satisfy the decree. Further, it is contention that the plaintiffs have in fact trespassed into the flat No.4 and thus, have no right to be in possession. 4. The defendant No.3 had filed an identical written statement in the suit. 5. The defendant Nos.1 and 2 had filed a civil suit No.112/2005 against the defendant Nos. 3 to 5 and others. Since the defendant No.3 was made a party in that suit, he received the summons along with the copy of the plaint in the said suit. It is the contention of the defendant No.3 that he was in fact not aware of the contents of the suit as well as written statement said to have been filed by him in Civil suit No.140/1992. The defendant Nos. 3 and 4 submit that after reading the plaint in Civil Suit No.112/2005, the defendant Nos. 3 and 4 felt that they were cheated by the defendant 10 No.1 and their Lawyer and, therefore, they moved an application for amendment of the written statement. The learned Judge of the Trial Court, allowed the application for amendment of the written statement. The defendant Nos. 1 and 2 filed an application purporting to be an application under Section 151 of Civil Procedure Code and contended that under the guise of the amendment of the written statement, the defendant Nos. 3 and 4, have in fact substituted their entire written statement, which they could not have done. They, therefore, contended that such substitution of the written statement, should not have been allowed and the defendants should have been allowed to carry out the amendment alone. This application was rejected by the Trial Court. Hence, these two writ petitions. 6. I have heard the learned Counsel for the petitioners and the respondents. 7. The defendant Nos. 3 and 4 had moved an amendment application because as already said, they felt that their written statement was not drafted according to their instructions and they have in fact been cheated at the instance of the defendant No.1. Although the application for 11 amendment was objected to, the learned Judge of the Trial Court, had granted the application. 8. The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No.1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel 12 Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No.1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows : “ Section 17- Admission – An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the 13 circumstances, hereinafter mentioned.” Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietory or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No.1 claims that he had purchased the suit property in the name of the defendant No.3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No.1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are “any other party” and not necessarily an adverse 14 party. It could be either the plaintiff or the defendant also. The above discussion clearly goes to show that the co- defendant does have a right to challenge or oppose the amendment sought to be made by the other defendants. 9. The defendant Nos. 3 and 4 filed a written statement in civil suit No.140/1992 on 08.01.1993. The amendment application was filed by them on 07.03.2006 i.e. more than 13 years after the written statement was filed. The delay is inordinate. But the delay in all cases, cannot be fatal because that party may be pleading new events or the new events may prompt the party to mould the defence. But the fact here is that, the application for amendment, is filed 13 years after the original written statement is filed. Now, the contents of the amendment application seeking amendment to the written statement, become very material. They show that the defendant No.1 is the real brother of the defendant No.3 and it is alleged that because of that, the defendant Nos. 3 and 4 had trust in defendant No.1. It is specifically alleged that the defendant No.1 approached the defendant Nos. 3 and 4 and told them that he would engage a Lawyer for them and the defendant Nos. 3 and 4 would have to sign the papers prepared by the Advocate. It is further alleged that they signed the blank Vakalatnama. Further, 15 they contend that they were asked by the defendant No.1 to come to the Court and sign the written statement before the Court Superintendent and accordingly, the defendant Nos. 3 and 4 went to the Court and signed the written statement, but they were not supplied the copies of the written statement and contents of the written statement, were not explained to them. The defendant Nos. 3 and 4 contend that they came to know of the contents of this written statement in civil suit No.140/1992 and the wrong statements made therein only when they received a copy of the plaint in civil suit No.112/2005. They contend that they, therefore, issued a notice to their Advocate Shri Joshi withdrawing the Vakalatnama. It is in this background that the amendment of the written statement was sought by the defendant Nos. 3 and 4. The learned Counsel for the respondent, made much ado about the conduct of the Lawyer appearing for the defendant Nos. 3 and 4 and he submits that the conduct of the said Lawyer, was unbecoming and he had drafted the written statement without letting the defendants know the contents. The conduct of the Lawyer here, in fact becomes immaterial. I would only say that prima facie, there is no substance in the contention about the conduct of the Advocate. Prima facie, it appears that both the defendants 16 Nos. 3 and 4 are educated persons. They have signed in English. They had gone with their brother to the Court and had signed the written statement in presence of the Superintendent of the Court. Further, the contents of the amendment application, do not make any kind of allegations against the Lawyer, but all the allegations are made against the defendant No.1, who is the brother of the defendant No.3. The learned Counsel for the respondent, should not have, therefore, made an ado about the conduct of Shri Joshi Advocate. It is difficult to assume at this stage that the defendant Nos. 3 and 4 did not know the contents of the written statement for all these 13 years. I may mention further that last para of the old written statement,i.e. para 31 and the contents of that para, are very material. The defendant Nos. 3 and 4 have signed the written statement, which is below that last para. It is difficult to accept that without reading that last para, they had signed the written statement. I may observe here that the learned Judge of the Trial Court while deciding the suit, should not get influenced by these observations because these observations are prima facie observations. Be that as it may, the fact is that the defendants now want to resile from what is stated in the original written statement. We have seen that there is an 17 inordinate delay of 13 years in filing an amendment application. It is difficult to accept prima facie that the defendants were unaware of the contents of the written statement and they came to know of it only on service of plaint in second suit. There is no other explanation in the amendment application for such delay and I do not find the explanation for delay as stated, to be very convincing. The Supreme Court in Gurdial Singh V.Raj Kumar Aneja reported in 2002(2) SCC 445 observes as follows : “15. The Court may allow or refuse the prayer for amendment in sound exercise of its discretionary jurisdiction. It would, therefore, be better if the reasons persuading the applicant to seek an amendment in the pleadings as also the grounds explaining the delay, if there be any, in seeking the amendment, are stated in the application so that the opposite party has an opportunity of meeting such grounds and none is taken by surprise at the hearing on the application.” 10. Now this takes me to consider the manner in which the amendment application is drafted. I shall deal with the merits of the application separately. The learned Counsel Shri Sonak for the petitioner, submits that the 18 amendment application must make it clear as to what portion is to be added and what portion is to be deleted if at all any portion is to be deleted. He submits that the application does not make it clear if the original paragraphs are to be deleted or they are to remained as they are. I shall reproduce here the actual contents of the paragraph 10 of the application by way of illustration : “10. The proposed amendments shall be as under :- I) On page 1 of the following paragraph shall be added as para 1 “ with reference to para 1 of the plaint The defendants No.3 and 4 admit that the plaintiffs are the sons of Late Smt. Paulina D'Souza, widow of John D'Souza the rest of the contents of para 1 are a matter of record and the plaintiffs are put to strict proof thereof” II) On page 1 the contents of para 1 shall be amended as follows :- “The Defendants No.3 and 4 admit that the Defendants No.5 is a tenant of Shop No.4 in the Pereira Building from 1970 and Defendant No.6 is a tenant of Shop No.3, defendant No.7 is a tenant of flat No.6 and Defendant No.8 and 9 is a tenant of the shop beneath the staircase of the 19 building and the Defendant No.10 is the tenant of the flat No.2 on the ground floor. The Defendant No.3 and 4 state that the late Mrs. Paulina D'Souza and Defendant No.3 mutually divided the said property lot No.12 and said building constructed therein known as “Pereira Building” in equal proportions as a result Shop No.1 and 2 and Flat Nos. 1,3 and 5 were taken by Defendant No.3 and 4 and shop Nos. 3 and 4 and flats Nos. 2,4 and 6 were taken by late Smt. Paulina D'Souza. The Defendant No.3 and 4 state that they had allowed the Defendant No.1 to lease out their said shops, and said flats and to collect the rents on their behalf. The Defendants Nos. 3 and 4 executed a Power of Attorney in favour of Defendant No.1. The Defendants No.3 and 4 further admit that the late Smt. Paulina D'Souza executed a Power of Attorney dated 4th October 1971 in favour of Defendant No.1 to lease out and collect the rents of the other half o the said building. The Defendants Nos. 3 and 4 admit that the Plaintiffs No.1 is occupying Flat No.4. The Defendants No.3 and 4 state that they are the co-owners in possession of half of the said property and said building.” III) On Page 2 the following para be added as para 2(a) “ with reference to para 3 of the plaint The Defendants No.3 and 4 admit that the Defendant No.3 Shri Jose Sebastiao Pereira and 20 Late Smt. Paulina D'Sauza purchased the suit property Plot No.12 admeasuring 488.25 sq. mts. by virtue of Deed of Sale with partial discharge and of debt with Mortgage dated 28th October 1967 and are the only co-owners in possession of the said property.” XXXI) On Page 10 the contents in Para 28 shall be amended to read as follows :- “ With reference to para 30 of the plaint:- The Defendants No. 3 and 4 admit that the cause of action have arisen in favour of the plaintiffs to claim ownership rights to half of the suit property and half of the suit building, the rest of the contents are a matter of law and need no comments.” XXXII) On Page 11 the contents in Para 30 shall be amended to read as follows :- “ With reference to para 31 of the plaint :- The Defendants No.3 and 4 state that the Suit building has been properly valued for the purpose of jurisdiction.” 11. If this is to be added as para 1 what is to happen to original para 1. It is not clear if it has to be deleted or to remain as it is. Again another para is shown to be added as para 1. There cannot be two paragraphs No.1. As stated earlier, it is not clear what is to be omitted or altered. The 21 Supreme Court in a decision reported in Gurdial Sing V. Raj Kumar Aneja reported in 2002(2) SCC 445, has held as follows : “13. Before parting we feel inclined