Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for determining real issues, provided they do not cause injustice to the other party.

JUDGMENT :

(NIVEDITA P. MEHTA, J.)

1.Rule. Rule is made returnable forthwith with the consent and at the request of the learned counsel for the parties.

2. The learned Ad-hoc District Judge, (FTC-1), Panaji, Goa I/C of DJ-3 Panaji, Goa (“the learned trial Court” hereinafter) has vide impugned order dated 23.10.2024; passed in Civil Suit no. 36/2013 (Mr. Anil alias Audhut B. Dhepe and others Vs. Mrs. Pratibha Pandurang Dhepe and others) dismissed the application filed by the plaintiffs,(hereinafter referred to as the petitioners), under Order VI Rule 17 of the Code of Civil Procedure (CPC) seeking to amend the prayer clause (b) as under :

a) after the words deed of sale, “dated 28-08-2013 executed before the Sub Registrar of Illhas”.

b) After the words null & void, “and consequently direct Defendant no 1 to 7 (hereinafter referred to as Respondents) to execute the sale deed in respect of their undivided rights, share and interest in the suit property to the Plaintiffs for an amount of Rs 48,00,000/- (Rupees Forty Lacs only).”

Facts

3. The petitioners, as plaintiffs, have filed the application under Order VI Rule 17 of CPC to amend the plaint against Respondents No. 1 to 7, as Defendants no.1 to 7 therein (hereinafter referred to as the respondents). The issue in controversy is the rejection of the petitioners’ application for amendment of the prayer clause (b). Therefore, it is necessary to know exactly, at the outset, the case set up by the petitioners, as plaintiffs.

Averments in the Plaint

4. The petitioners have filed a suit for declaration, specific performance and injunction. The petitioners no. 1 and 2 and the respondents no.2 to 7 are cousins/co-owners. There exists a piece of land admeasuring 662 sq.mts. with a multi-storied building standing thereon, situated at Panaji Goa, which is surveyed under chalta no. 167 to 172 of P.T. Sheet no.42 of City Survey Panaji. The first floor of this multi-storied building has been sold by petitioners and respondent nos.1 to 3 and Mr. Pandurang Dhepe in favour of Bank of Maharashtra vide Deed of Sale dated 30.8.2001. Except the first floor; the remaining multi-storied building alongwith the piece of land shall be hereinafter referred to as “suit property”. The suit property originally belonged to the ancestors of petitioners and respondents. Inventory Proceedings no.4/2000/A were filed before the Civil Judge, Senior Division at Panaji. The learned Civil Judge, Senior Division at Panaji vide order dated 3.05.200, allotted the half undivided share of the suit property to the petitioners, 1/3rd undivided share in the suit property to respondent no.1 and her late husband Mr. Pandurang Dhepe, 1/6th undivided share to respondents no.2 and 3. On the demise of Mr. Pandurang Dhepe the undivided right/share of the suit property devolved upon respondents no.2 to 7. The petitioners and respondents no. 1 to 7 are the co-owners of the aforesaid suit property.

5. As per Article 1566 of the Portuguese Civil Code, if any co-owners decide to sell their share, the first right of purchase is of the co-owners. Articles 1566 and 1567 of the Code are reproduced below: -

Article 1566 —Right of preference of co-owners—Co-owners of a thing which cannot be partitioned or has not been partitioned may not sell their respective share to third parties if another co- owner is willing to acquire the same for the same price.

§ 1. The co-owner who is not notified of the sale may acquire for himself the share sold to third parties, provided he sues for the same within a period of 6 months from the date on which he comes to know of the sale; before taking delivery, the said co-owner shall deposit the price which, according to the terms of the contract, has been paid or has become due.

§ 2. In case there is more than one co-owner, the provisions of §§ 4 & 5 of Article 2309 shall be observed; but if the shares are not equal and the partner of the larger share desires to exercise his right of pre- emption, he shall be given first prefe