The High Court at Goa dismissed a writ petition challenging the rejection of an amendment application for recovery of possession. The court held that no case for interference was made out as the Trial Court was justified in rejecting the application.
The writ petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 483 OF 2013
MR. MULLA ABUBACAR MUZAWAR AND ANR., ... Petitioners Versus MR. MULLA MOINODIN MUZAWAR AND 5 ORS., ... Respondents
... Respondents
Shri Thalmann Pradeep Pereira, Advocate for the Petitioners.
Coram:R. M. SAVANT, J.
Date:3rd October, 2013
P.C.:
The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 24/04/2013 passed by the learned Civil Judge Junior Division, Ponda, Goa by which order the application for amendment of the plaint filed by the petitioners came to be rejected.
2
plaintiffs have been ousted from the possession of the property. It seems that the said deposition resulted in the filing of the instant application for amendment of the plaint so as to amend the plaint to incorporate the prayer for recovery of possession of the joint and undivided property and directing the defendants to restore the vacant possession of the land to the plaintiffs. The Trial Court considered the said application on the touchstone of the test laid down by the Apex Court namely whether the plaintiffs have satisfied the due diligence test. The Trial Court took into consideration the evidence of the witness of the plaintiffs wherein PW1 states that he can see the suit property if he comes out of the house and has to proceed to the market via Kotwada road. Considering the said evidence, the Trial Court was of the view that since the knowledge of the construction coming up can be attributed to the plaintiffs the application filed for amendment of the plaint in the year 2013 was belated, the Trial Court has also rejected the application on the grounds that the relief sought by way of recovery of possession was also beyond limitation.
3
the amendment was required to be allowed. However, in the instant case as indicated above the suit filed for declaration and injunction is now sought to be converted to a suit for possession and for mandatory injunction directing the defendants to vacate and hand over possession of the vacant land. Apart from the same, the finding of the Trial Court as regards non satisfaction of the due diligence test by the plaintiffs in the facts and circumstances of the present case also cannot be faulted with. Though the application has been rejected on the ground that the relief claimed by way of the amendment application is barred by limitation, in my view, it is not necessary to go into the said aspect in view of the rejection of the application on the other grounds.
R. M. SAVANT, J.
NH
3 issues framed by the court
Whether the High Court should interfere under Article 227 with the rejection of the plaint amendment application by the Trial Court.
Whether the amendment application filed by the plaintiffs was barred by limitation.
Whether the plaintiffs satisfied the due diligence test for the amendment application.
Colour shows how this judgement treated each authority
Sampath Kumar v. Ayyakannu and anotherReferred¶13
Sampath Kumar V/s. Ayyakannu and another (AIR 2002 SC 3369) · Who else cites this
2 provisions across 1 enactments
Mr. Mulla Abubacar Muzawar and Anr.
Mr. Mulla Moinodin Muzawar and 5 Oors.
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
