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2010 Supreme(Bom) 187

N.A.BRITTO, NARESH H.PATIL
RAJASHRI alias RAJANI U. BHAKTA – Appellant
Versus
MARIAELSA DENORONHA WOLFANGO DASILVA since deceased through LRs. ANTONIO S. C. PERERIA – Respondent


Advocates appeared
For appellants: J. J. Mulgaonkar
For respondents: V. R. Tamba and D. D. Zaveri

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The appeal concerns a suit for declaration of title and injunction, with the plaintiffs seeking to amend their plaint to correct a typographical error from "temporary" to "permanent" in the prayer for injunction. The Court found this correction to be a patent and obvious clerical mistake (!) (!) .

  2. The trial Court initially rejected the application for amendment and accepted the defendant’s plea for rejection of the plaint, primarily on the grounds that the amendment was sought after a long delay and was considered a post-trial amendment. The Court held that such amendments should not be allowed after a significant lapse of time, especially when the amendment would change the nature of the relief sought (!) (!) .

  3. The appellate Court determined that the rejection of the plaint under Order VII, Rule 11, is a decree, and the appeal is maintainable against such an order. It also clarified that orders affecting the decision of the case can be challenged in an appeal from the final decree, and that rejection of the plaint on other grounds does not amount to a decree (!) (!) .

  4. The Court emphasized that procedural objections, such as undervaluation of the suit or improper court fee, are issues that can be raised at the appropriate stage, and cannot be invoked for the first time in an appeal unless they directly affect the decision (!) (!) .

  5. The Court highlighted that amendments should generally be allowed if they do not cause injustice, change the nature of the suit, or prejudice the other party, and that amendments related to correcting clerical or typographical errors are usually permissible at any stage (!) (!) .

  6. The Court noted that the objection to the suit's maintainability based on the omission to seek further relief (permanent injunction) at the time of filing was not valid, especially since the plaintiffs immediately sought to amend their pleadings upon realizing the mistake. The rejection of the amendment was found to be an error (!) (!) .

  7. The Court rejected the defendant’s argument that the suit was barred by law of limitation or that the relief sought was improperly valued, emphasizing that such objections should be raised at the proper stage and not belatedly in appeal (!) (!) .

  8. The Court observed that procedural irregularities, such as failure to pay proper court fees or undervaluation, do not automatically bar the maintainability of the appeal if they are not raised or determined at the trial stage (!) (!) .

  9. The Court clarified that the appeal was rightly allowed, the order of rejection of the plaint was set aside, and the suit was restored to the trial Court for proper adjudication, with costs ordered in favor of the plaintiffs (!) .

  10. The Court declined to stay the judgment, considering the circumstances, and ultimately allowed the appeal (!) .

In summary, the key points revolve around the admissibility of a clerical correction, the maintainability of the appeal against the rejection of the plaint, and the importance of raising procedural objections at the appropriate stage. The Court favored allowing amendments for typographical errors and emphasized that procedural irregularities should be addressed at the proper juncture in the proceedings.


JUDGMENT

N. A. BRITTO, J. :- Admit. By consent heard forthwith.

2. This appeal is filed by the plaintiffs in Special Civil Suit No. 220/1993/A and is directed against a common Order dated 7-10-2009 of the learned Civil Judge, Senior Division, Panaji by which the application for amendment filed by the plaintiffs dated 22-4-2009 has been dismissed and the plaint in the suit has been rejected in terms of Order 7, Rule II (d) Civil Procedure Code.

3. Some more facts are required to be stated to dispose of the present appeal and for that, the parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit.

4. The plaintiffs filed the suit on or about 27-9-1993 styling the same as a suit for "declaration and injunction" and with the allegation that the plaintiffs' predecessor Shri Manohar Hiru Parulekar had purchased the suit property by deed dated 10-1-1964, and, thereafter the property was inscribed in the Land Registration Office in the name of the said Manohar Hiru Parulekar, and was also recorded in city survey in his name and upon his death, in inventory proceedings held, it was allotted to plaintiff Nos. 1, 3 and 5 in equal shares, the plaint














































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