Allowed

Vito D'Costa (Sin. Dec.) through Lr'S. and Anr., v. Querino Da Costa (Deceased) and 8 Ors.

Bombay HC14 Feb 2014WP/745/2013

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Bombay at Goa quashed an appellate order that had rejected an application for amendment of pleadings. The petitioners sought to explicitly claim prescriptive easement rights under Section 15 of the Easement Act by adding the phrase 'as of right', which the lower court held was beyond the scope of the prior remand order. The High Court allowed the amendment.

What did the court decide?

The impugned order dismissing the amendment application was quashed, and the amendment application was allowed subject to payment of costs.

Vito D'Costa (Sin. Dec.) through Lr'S. and Anr., Vs Querino Da… — Partition | Bombay HC (2014)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.745 of 2013

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Vito D'Costa (since deceased through) Legal Representatives) (a) Ciana D'Costa and her husband, (b) Donato D'Costa, Both major r/o H. No.197, Orlim, Salcete, Goa, (c) Esley D'Costa, R/o H. No. 367, Major of age, Reprovaddo, Varca, Salcete, Goa, 2. Carmina D'Costa, major, landlord, r/o H. No. 367, Reprovaddo, Varca, Salcete, Goa. … Petitioners.

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Versus 1. Querino da Costa (deceased) and his wife, 2. Marcelina Fernandes e Costa, both major, landlords, r/at H. No. 370, Reprovaddo Varca, Salcete, Goa. Both Respondent Nos.1 and 2 since deceased through their legal representatives: (a) Mrs. Delma D'Costa, (b) Mr. Averson Rodrigues, (deceased) (c) Mrs. Carmina D'Costa, All major r/o Varca, Salcete, Goa. Respondent No. 2(b) since deceased through legal

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representatives: b.(i) Dr. Jandy Rodrigues, b.(ii) Dr. Mario Fernandes, b.(iii) Joviana Rodrigues, b(iv) Jacketta Rodrigues, All major, r/o Pedda, Margao, Goa.

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c.(a) Dylan D'Costa, c.(b) Denrich D'Costa, c.(c) Dranson D'Costa, All minors represented by Carmina D'Costa, r/o H. No. 370, P. O. Varca, Salcete, Goa.

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Belvy Janet Noronha e Costa and her husband,

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Auxilio Noronha, both major, r/at H. No. 369, Reprovaddo, Varca, Salcete, Goa.

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Gabriel D'Costa and his wife,

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Estela D'Costa, both major, r/at H. No. 368, Reprovaddo, Varca, Salcete, Goa.

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The Village Panchayat of Varca, Varca, Salcete, Goa.

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Joao Andre da Costa, 72 years old and his wife,

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Mrs. Lina D'Costa, 61 years old, Both r/o H. No. 61, Novangully, Varca, Salcete Goa. … Respondents.

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Mr. S. S. Kantak, Senior Advocate with Mr. P. Talaulikar, Advocate for the petitioners.

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Mr. N. Sardessai with Mr. A. Kakodkar and Mr. D. Shirodkar, Advocates for respondents no. 8 and 9.

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CORAM :- U. V. BAKRE, J.

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Reserved on : 29th January, 2014

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Pronounced on : 14th February, 2014

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JUDGMENT :

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Heard Mr. Kantak, learned Senior Counsel appearing on behalf of the petitioners and Mr. Sardessai, learned Counsel appearing on behalf of the respondents no. 8 and 9.

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2. Rule. Rule is made returnable forthwith.

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3. By consent heard forthwith.

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4. By this petition, the petitioner has taken exception to the order dated 06/11/2013 passed by the learned District JudgeII, South Goa, Margao ('First Appellate Court') in Regular Civil Appeal No. 39/2009.

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5. The facts, relevant for the disposal of the petition, are as follows :

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Respondents no. 8 and 9 had filed a suit for permanent and mandatory injunction before the learned Civil Judge, Junior Division, Margao ('Trial Court') being Regular Civil Suit No.750/2000/C against the petitioners and respondents no. 1 to 7. The petitioners, as defendants no. 3 and 4, filed their written statement and counterclaim. Respondents no. 8 and 9 then filed their written statement to the counterclaim and also filed additional written statement. Vide judgment and decree dated 04/02/2009, the learned Trial Court decreed the suit partly and held that respondents no. 8 and 9 are entitled to construct the compound wall in the suit plot, without blocking the access and/or gate of the petitioners. The counterclaim filed by the petitioners was also partly allowed and it was declared that the petitioners have a right of motorable access through the suit plot. The said judgment and decree dated 04/02/2009 passed by the Trial Court was challenged by the respondents no. 8 and 9 by filing Regular Civil Appeal No. 39/2009 before the First Appellate Court. By judgment and decree dated 30/06/2009, the First Appellate Court dismissed the same. Respondents no. 8 and 9 thereafter filed Second Appeal No. 98/2009 before this Court. By judgment and order dated 02/08/2013, this Court partly allowed the appeal and remanded the matter to the First Appellate Court

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for fresh adjudication on the issue of easement claimed by the defendants in terms of Section 15 of the Indian Easement Act.

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6. After remand, on 05/10/2013, the petitioners filed an application for amendment of the written statement and counterclaim before the First Appellate Court for incorporating certain facts and for adding an alternate prayer in the counterclaim. Following was sought to be incorporated in the written statement:

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(a) “Add after para 9 of the written statement:

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'The said motorable access has been peaceably

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and openly enjoyed by the Defendants No. 3 and 4 as an easement as of right without interruption from the plaintiff for more than 30 years, at least from the year 1970 onwards.'

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(b) Add after para 4 of the counterclaim:

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'This access has been enjoyed by the Defendants No. 3 and 4 as an easement and as of right from 30 years.'

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'b(i). Alternatively to declare that the

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defendants No. 3 and 4 have acquired easementary right over the said Motorable access through survey

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No. 56/13 of village Varca, Salcete as shown in green colour at “Exhibit-A”.”

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7. The respondents no. 8 and 9 endorsed their reply on the said application for amendment objecting the same on the ground that it is beyond the scope of the remand of the proceedings made by the High Court; that it changes the nature of the suit; that the plaintiffs (respondents no. 8 and 9) will be highly prejudiced; and that the same has been filed only to delay the proceedings.

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8. The application for amendment was dismissed by the First Appellate Court by order dated 06/11/2013, which order is impugned in the present petition.

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9 . Mr. Kantak, learned Senior Counsel appearing on behalf of the petitioners, submitted that all the facts relevant for hearing the issue of easement by prescription under Section 15 of the Easement Act are already there in the written statement/counter claim. He then read out the schedule of the amendment proposed to be made to the written statement and the counterclaim and submitted that the amendment is merely for the purpose of incorporating the nature of the right and for elucidation of the written statement and counterclaim by adding

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the words 'as of right'. He submitted that merely because this Court, while remanding the matter, did not specifically permit the petitioners to file an application for amendment, that does not mean that this Court had precluded the petitioners from filing the same, which otherwise by law, the petitioners are entitled to do. He pointed out from the impugned order that the amendment has been rejected on the ground that prejudice would be caused. He submitted that prejudice can always be compensated by awarding costs. He invited my attention to the definition of 'easement' given under Section 4 of the Easement Act and then, to the 'easement by prescription' under Section 15 of the said Act. According to the learned Senior Counsel, the petitioners are not changing the nature of the suit in any manner nor are adding any new cause of action. He further submitted that the petitioners have already led evidence with regard to the said amendment and that the petitioners shall not lead any further evidence.

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10. Mr. Kantak, learned Senior Counsel appearing on behalf of the petitioners relied upon the following judgments :

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(i) Ramgopal Kalantri (Deceased by LR) Smt. Kausalya and others Vs. G. Ganand , [AIR 1983 AP 401]

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(ii) Lakhi Ram (Dead) through L.Rs. Vs. Trikha

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Ram and others , [(1998) 2 SCC 720]

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(iii) Vineet Kumar Vs. Mangal Sain Wadhera , [(1984) 3 SCC 352]

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(iv) Kunhayammed and others Vs. State of Kerala and another , [(2000) 6 SCC 359]

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11 . Per contra , Mr. Sardessai, learned Counsel appearing on behalf of respondents no. 8 and 9 submitted that the order of remand by this Court was not a blanket remand, but the same was coupled with certain observations and thus was restrictive. He submitted that in such circumstances, the First Appellate Court has rightly not allowed the amendment application, since the First Appellate Court was required to decide the matter afresh only in the light of the observations made in the judgment of this Court. He tried to point out from the material on record that the said amendment is not at all necessary for determination of real controversy in the suit. He invited my attention to paragraph 4 of the written statement filed by the petitioners. He submitted that till 2001, the petitioners did not know that Lote 'E' was sold to the said respondents. He submitted that according to the petitioners, therefore, they were using Lote 'E' as co-owners. He pointed out that respondents no. 8 and 9 had pointed out this fact to the First Appellate Court. He, therefore, submitted that

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from the year 2001, the petitioner cannot establish prescription. He further submitted that nothing had prevented the petitioners from praying for amendment before the High Court or seeking leave to amend the pleadings and not having done so, they cannot now pray before the First Appellate Court for any amendment. He submitted that the First Appellate Court cannot go beyond the directions given by this Court. He urged that the petitioner cannot get what could not be obtained directly, in an indirect manner. He submitted that there is nothing wrong in the impugned order and more particularly nothing can be termed as perverse in the impugned order and, therefore, this Court should not interfere with the same.

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12. Mr. Sardessai relied upon the following judgments : (i) L. N. Aswathama and another Vs. P. Prakash , [(2009) 13 SCC 229]

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(ii) Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others , [(2009) 10 SCC 84]

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(iii) Chapsibhai Dhanjibhai Danad Vs. Purushottam , [1971 (2) SCC 205]

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(iv) Justiniano Antao and others Vs. Bernadette

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B. Pereira (smt.) , [(2005) 1 SCC 471]

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(v) Popcorn Entertainment Corporation and another Vs. The City Industrial Development

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Corporation and another , [2009 (6) All MR 133].

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(vi) Govinda Pillai Gopala Pillai Vs. Ayyapan Pillai and others, (MANU/SC/0587/1969).

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13. I have perused the entire material on record. I have also considered the submissions made by the learned Counsel for the respective parties and have gone through the judgments relied upon by them.

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14. Let us first see whether in view of the judgment dated 02/08/2013 passed by this Court in Second appeal No. 98/2009, the petitioners could not have filed application for amendment of their written statement.

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(a) In the case of “Popcorn Entertainment Corporation and another” (supra), relied upon by the learned counsel for the respondents No. 8 and 9, a Division Bench of this Court has held thus :

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“Power of jurisdiction of the Court lower in hierarchy after remand, depends on specifications of the remand order. Whether the order of remand lays

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down any limits of enquiry to be made by the Court lower in hierarchy that Court has no jurisdiction to entertain any question which falls outside those limits. In other words, where the Court passes restricted order of remand it is not open to any of the parties or any Court to enlarge the scope of the remand order, that too, by a side window. If such course is permitted, it would be a destructive of all judicial discipline and will strike at the root of the efficacy and binding nature of an order of a superior Court on the parties to a dispute and the necessity of a subordinate Court to faithfully implement an order of the superior Court.”

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(b) In the case of “ Govinda Pillai Gopala Pillai” (supra), it was found that the first and the fourth points which were of substantial importance for the purpose of the disposal of the suit were not fully and completely examined and investigated by the Courts presumably for the reason that the pleadings disclosed a lot of confusion and lacked precision and clarity on these points. The Apex Court found that it would be just and expedient, in the peculiar circumstances of the said case, to remand it to the trial Court with liberty to the parties to make appropriate and necessary amendments in the pleadings and to lead such additional evidence as may be required to dispose of the suit in accordance with law.

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15. There can be no dispute about the principle laid down in the aforesaid judgment in the case of “Popcorn Entertainment Corporation & anr” (supra). It is true that where the Court passes restricted order of remand, it is not open to any of the parties or any Court to enlarge the scope of remand order and that too by the side window. In the present case, the remand as per the order dated 02/08/2013 passed by this Court in Second Appeal No. 98/2009 was for appreciation of the evidence on record and ascertaining as to whether the ingredients required to establish the right of easement in terms of Section 15 of the Easement Act, have, in fact, been established by the petitioners. No restriction has been put on the plaintiff to do the things permissible by law. The amendment, which is proposed by the petitioners to the written statement, does not at all enlarge the scope of the remand, since even after the said amendment, the petitioners will have to establish from the evidence on record as to whether the ingredients required to establish the right of easement in terms of Section 15 of the Act have been established by the petitioners. The judgment in the case of “Govinda Pillai Gopala Pillai” (supra), passed in the peculiar circumstances of that case, in my view, is not applicable to the present case. Therefore, there is no force in the contention of the learned

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Counsel appearing on behalf of the respondents no. 8 and 9 that the application for amendment is beyond the scope of the order dated 02/08/2013 passed by this Court in Second Appeal No. 98/2009.

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16. Before proceeding to decide whether the amendment application has been rightly or wrongly rejected, by the First Appellate Court, it would be advantageous to know as to what is laid down in various rulings relied upon by the parties.

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17. In the case of “Lakhi Ram (Dead) through L.Rs.”

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(supra), relied upon by the learned Counsel for the petitioners, the suit was for specific performance of agreement to sell land in favour of the plaintiff–appellant. The cause of action centered around the inaction on the part of vendor in complying with the agreement. The said suit was decreed by the Trial Court. In the appeal, the defendants contended that the suit was barred by Section 16(c) of Specific Relief Act as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. The plaintiff then moved an application for amendment under Order VI, Rule 17 of C.P.C. seeking introduction of the averment regarding readiness and willingness to perform his part of the contract. The Appellate Court allowed the application. The

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said decision of the Appellate Court was brought in challenge by defendants no. 2 and 3 before the High Court. In Miscellaneous Appeal, the High Court took a view that the said proposed amendment could not have been granted as it would displace the defence of the defendants and consequently, the order of the Appellate Court allowing the amendment, was set aside. The said order of the High Court was challenged before the Apex Court. The Apex Court held that the amendment inserting the relevant averment under Section 16(c) of the Specific Relief Act does not change the cause of action and would be a legally permissible exercise as laid down by the Apex Court in the case of “ Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar” , [(1990)1 SCC 166].

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18. In the case of “Vineet Kumar” (supra), relied upon by the learned Senior counsel appearing on behalf of the petitioners, the Apex Court has held thus :

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“ 16. Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the

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amendment would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action. In A.K. Gupta & Sons v. Damodar Valley Corporation, (1966) 1 SCR 796, this Court dealing with the cause of action observed as follows:

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“The expression ‘cause of action’ in the present context does not mean ‘every fact which it is material to be proved to entitle the plaintiff to succeed’ as was said in Cooke v. Gill, (1873) LR 8 CP 107, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd., (1962) 2 All ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile.” “

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19. In the case of “Ram Gopal Kalantri” (supra), relied upon by the learned Counsel for the petitioners, it has been held by the Andhra Pradesh High Court as follows :

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“Where in a second appeal from a suit for right of way seeking injunction restraining the defendant from blocking certain gate, the plaintiff sought to

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amend his plaint for raising a plea about right of easement by prescription, the amendment could be allowed when on uncontroverted facts stated in plaint such a plea could be inferred, though it was not raised originally in the plaint. The plaintiff had specifically stated the necessary facts in the plaint even originally filed and the cause of action also was based on the infringement of his right of ingress and egress from the gateway in dispute and the facts having been denied must be taken to have been admitted. AIR 1950 Mad 32 held impliedly overruled by AIR 1978 SC 484.

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The application for amendments are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. Further, the delay by itself, is not fatal, to file an application for amendment provided the ends of justice will be met by appropriately awarding costs to the defendant. Even in second appeal there are instances where this Court has allowed amendment of the pleadings to give an

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opportunity to the parties to substantiate their rights in dispute.”

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20. In the case of “Revajeetu Builders and Developers” (supra), relied upon by the learned Counsel appearing on behalf of the respondents No. 8 and 9, the Apex Court has held that the discretionary power in the matter of amendment of pleadings must be exercised judiciously and with great care. It has been held that while deciding the application for amendment, the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. It has been held that amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. It has been held that the Court should take into account whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case. Some basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment have been stated as under :

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“(i) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(ii) whether the application for amendment is bona fide or mala fide;

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(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

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(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.”

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21. In the case of “ Chapsibhai Dhanjibhai Danad ” (supra), on which reliance has been placed by the learned Counsel for the respondents No. 8 and 9, the Apex Court has held thus :

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“ In Raychand v. Maneklal, [AIR 1946 Bom 266], it was held that as easement by prescription under Sections 12 and 15 of the Act is in fact an assertion

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of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on someone else’s property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else’s property is a necessary ingredient in proof of the establishment of that right as an easement.”

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22. In the case of “ Justiniano Antao and others ” (supra), relied upon by the respondents No. 8 and 9, the Apex

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Court has held that for acquisition of right of way by prescription, it has to be shown that the incumbent has been using the said land as of right peacefully and openly and without any interruption from the past 20 years. It is further observed that specific pleadings have to be averred and categorical evidence led in general and specifically in respect of the dates between which right of way concerned has been used for “at least” 20 years.

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23. In Paragraph 9 of the written statement, the petitioners have averred that the compound wall of the house of the defendants opens into said Survey No. 56/13 since the year 1970 and the defendants have always enjoyed a clear and open motorable access through the said Survey No. 56/13 over these years. Again, in paragraph 4 of the counterclaim, the defendants have averred that defendants no. 3 and 4 have a motorable access over the said Survey No. 56/13 which they are enjoying openly and peacefully, without objections of the plaintiffs and anyone else since the year 1970 and they acquired the right of easement over the said access. It is further averred that there is no other access to the house of defendants no. 3 and 4 located in holding under Survey No. 56/18 and that the compound wall of the defendants opens into the Survey Holding under No. 56/13. In such circumstances, there is pleading in the written statement

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and counterclaim that defendants no. 3 and 4 have a right of easement over the said access through Survey No. 56/13. There is averment that the said access has been enjoyed by the said defendants openly and peacefully, without objection of the plaintiffs or anyone else since the year 1970 which is more than 30 years prior to filing of the written statement and counterclaim. There is a specific averment in the counterclaim that the defendants no. 3 and 4 have acquired a right of easement over the said access. In paragraph 4 of the written statement filed by the respondents no. 8 and 9 (plaintiffs) to the counterclaim of the petitioners, the respondents have denied that the defendants have enjoyed such access openly, peacefully and without objections from the plaintiffs since the year 1970 and that the defendants have acquired a prescriptive right or right of easement or any other right over the said plot of land. Thus, the respondents no. 8 and 9 (plaintiffs) have understood very clearly that defendants no. 3 and 4 have claimed prescriptive right of easement. In the light of the above averments, which are already existing in the written statement and counterclaim of defendants no. 3 and 4, it can be understood that by way of the proposed amendment, the said defendants are merely adding the words “as of right” in the written statement insofar as the exercise of the said easementary right is concerned. The amendment ought to have been allowed

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since on the facts already stated in plaint such a plea could be inferred, though it was not raised originally in the plaint. I fail to understand as to how the said amendment is changing the nature of the suit. The amendment does not change the nature of the suit nor does add any fresh cause of action for the counterclaim. There is no dispute that when an easement under Section 15 of the Easement Act is claimed, there has to be a specific averment in the pleadings that the party has been using the said land as of right peacefully, openly and without any interruption for the past 20 years. However, it is essential that categorical evidence with regard to the above pleadings has to be led. This Court, while passing the order of remand, was well aware of the said mandatory requirement of law, in spite of which the remand order was made. Unless the said mandatory words “as of right” are pleaded, the question of finding out whether it is established by the said defendants that the ingredients required to establish the right of easement in terms of Section 15 of the Easement Act have been established by them, as required by this Court, would not arise. The pleadings cannot be construed strictly and they would be liberally and broadly construed to give relief to the party. One can understand from the pleadings already existing in the written statement and the counterclaim that the real question for consideration is whether defendants no. 3 and 4 have got a right

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of way and whether the said right has been acquired by prescription. Simply by adding the words “as of right”, the defendants cannot be said to be acting malafidely. Considering the principles laid down by the Apex Court in the case of “Lakhi Ram (Dead) through LRs” (supra), the amendment inserting the relevant averments as required under Section 15 of the Easement Act, does not change the cause of action and would be legally permissible exercise. No fresh cause of action is sought to be introduced by the amendment. The conditions laid down by the Apex Court in the case of “Revajeetu Builders and Developers” (supra), relied upon by the respondents no. 8 and 9 themselves, have been fulfilled.

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24. No doubt, the combined reading of the pleadings of both the parties, reveal that according to the defendants, the said plot corresponding to Lote 'E' of Partition Deed was kept in common for enjoyment of all the parties and was never meant to be sold. It is, no doubt, alleged by the said defendants that the Deed of Sale dated 10/03/1971 is executed through fraud, misrepresentation and deceit and is not binding on the defendants. The above would reveal that defendants no. 3 and 4 are claiming co-ownership of the said plot through which the access is claimed. In that case, the claim of easement by

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prescription may not stand. However, we are not considering the merits of the amendment. We are considering only whether the amendment as prayed for should be allowed or not. Whether defendants no. 3 and 4 established the pleadings added by way of amendment or not, is a question to be determined on merits.

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25. The learned First Appellate Court has observed in the impugned order that the defendants had not prayed for any relief of declaration that defendants no. 3 and 4 have a right of motorable access through Survey No. 56/13. However, a perusal of the written statement and counterclaim reveals that such a prayer is already there. The learned First Appellate Court has further observed that by the present amendment, defendants no. 3 and 4 want to incorporate pleading that they were enjoying the motorable access since last 30 years. Even such an averment is already there in the written statement and counterclaim. Merely because defendants no. 3 and 4 did not bring to the notice of the learned Single Judge of this Court that they wish to file an application for amendment, that does not preclude defendants no. 3 and 4 from exercising their right under the Law. The observation of the learned First Appellate Court that since the High Court has given direction to decide the appeal within a period of three months from the date of appearance, such time

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bound direction shows that no latitude can be given to defendants no. 3 and 4 to file an application for amendment, is arbitrary and an observation which is uncalled for. The question was whether the amendment was necessary for determining the real question in controversy. It can easily be said that the said amendment is absolutely necessary for determining the real question in controversy. The learned Trial Court has not at all considered as to how lot of prejudice will be caused to the respondents and as to how the defence taken by the respondents in the written statement to the counterclaim would be affected. In any case, the petitioners have already made a statement that they would not lead any further evidence in the matter. Any inconvenience that would be caused to the respondents can be compensated by awarding costs.

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26. In all the circumstances above, I am of the considered view that the impugned order is erroneous, since the material on record as well as law governing the field has not been considered. Interference of this Court is, therefore, warranted.

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27. In the result, the petition is allowed.

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(a) The impugned order dated 06/11/2013 is quashed and set aside.

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(b) The application for amendment of written statement and counterclaim filed by the petitioners is allowed, subject to payment of costs of Rs.5,000/- to the plaintiffs in the suit.

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(c) The First Appellate Court shall allow the petitioners to carry out amendment within a fixed time limit, upon deposit of the costs. The petitioners shall, however, not be allowed to lead any further evidence, based on the said amendment.

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(d) Rule is made absolute in aforesaid terms.

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28. The petition stands disposed of accordingly.

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U. V. BAKRE, J.

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SMA

Vito D'Costa (Sin. Dec.) through Lr'S. and Anr., v. Querino Da Costa (Deceased) and 8 Ors.

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Vito D'Costa (Sin. Dec.) through Lr'S. and Anr., v. Querino Da Costa (Deceased) and 8 Ors.

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