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IN THE HIGH COURT OF BOMBAY AT GOA
NIVEDITA P. MEHTA, J.
Anil alias Audhut B. Dhepe (Since Deceased) - Petitioner
Versus
Pratibha Pandurang Dhepe Wd/o Pandurang Dhepe - Respondent
Writ Petition No. 2848 of 2024
Decided On : 07-02-2025
(A) Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of pleadings - Petitioners sought to amend prayer clause in a suit for declaration and specific performance regarding pre-emption rights over a property - Trial Court dismissed the application for amendment, citing it as time-barred and altering the nature of the suit - Court found that the amendment was necessary for determining the real controversy and did not change the nature of the suit. (Paras 14, 41, 43)
(B) Pre-emption Rights - Co-owners have the first right to purchase undivided shares before sale to third parties as per Articles 1566 and 1567 of the Portuguese Civil Code - Petitioners exercised their right of pre-emption but were denied execution of the sale deed by respondents. (Paras 5, 6, 32)
Facts of the case:
The petitioners, co-owners of a property, sought to amend their plaint to include a prayer for executing a sale deed after exercising their pre-emption rights over the undivided shares of the respondents, who sold the property to a third party. The trial Court dismissed the amendment application, leading to this appeal.
Findings of Court:
The Court held that the amendment sought was clarificatory and did not introduce a new case or relief, thus should be allowed to ensure justice and avoid multiplicity of proceedings.
Issues: Whether the amendment sought by the petitioners alters the nature of the suit or introduces a time-barred claim.
Ratio Decidendi: The Court ruled that amendments should be allowed if they are necessary for determining the real questions in controversy and do not cause injustice to the other party, emphasizing the permissive nature of amendments under Order VI Rule 17 of CPC. (Paras 20, 22, 41)
Result: The impugned order was quashed, and the application for amendment was allowed.
JUDGMENT :
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 preference without any auction
Amendments to pleadings under Order VI Rule 17 of CPC should be allowed if necessary for justice and do not change the nature of the suit.
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.
An amendment of the pleadings under Order VI Rule 17 CPC does not alter the nature and character of the suit if the amendment is predicated on the same facts and the same document.
Amendments to pleadings post-trial require showing of due diligence, and must not alter the fundamental nature of the case, or cause undue prejudice to the opposing party.
The court reinforced that amendments post-trial initiation are disallowed if barred by limitation, emphasizing the necessity for due diligence in raising claims at the appropriate stage.
Amendments to pleadings must be made in good faith and should not cause prejudice to the opposing party, especially if they seek to withdraw prior admissions.
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