Advocates:
['ADV ALMEIDA COUTINHO CLEOFATO GARRETT', '', 'ADV IVAN SANTIMANO', 'ADV ANALIZ MARIA MENEZES']

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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION No.99 OF 2020

Varca Sports Club,

represented thr.its General Secretary

Mr. Jimreeves Rodrigues e Rebello

and 2 Ors.

..... Appellants

V e r s u s

Aires D'costa @ Ayres Genesio Jose

Estevam Da Costa, thr. his POA,

Arjun D'Costa and 40 ors.

..... Respondents

Mr. Cleofato Coutinho Almeida, Advocate for the Petitioners.

Ms. Analiz Maria Menezes, Advocate for the Respondent No.1.

CORAM : M. S. SONAK, J

DATE : 22

nd

June, 2021

ORAL ORDER

:

Heard Mr. Cleofato Coutinho Almeida, learned Counsel for the

petitioners and Ms. Analiz Maria Menezes, learned Counsel for the

respondent No.1.

2.

The challenge in this petition is to the order dated 14.11.2019

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by which the learned Trial Court has granted leave to the respondent no.1

(original plaintiff) to amend the plaint in Civil Suit No.22/2014/FTC-I.

3.

Mr. Coutinho, learned Counsel for the petitioner submits that

in the plaint, the suit property had been described with a particular name

and under No.41253. He points out that even the boundaries to the suit

property were set out in clear terms in paragraph 2 of the plaint. He points

out that the details of devolution of title were also set out in the plaint. He

submits that after the petitioners filed their written statements in the year

2014 itself, after a period of almost 5 years, the application was filed to

amend the plaint and to fundamentally change its nature.

5.

Mr. Coutinho, learned Counsel submitted that the amendment

proposed to change the name of the property, its registration number as well

as the boundaries of at least 3 sides. He points out that even the details as

to devolution pleaded in the original plaint have been given a go by and an

entirely new case is sought to be set out by seeking leave to amend the

plaint. He submits that there is no explanation whatsoever for the delay

involved and, besides, this is a case where the very foundation of the

original suit is being displaced. He submits that the learned Trial Judge

exceeded jurisdiction in allowing the amendment of this nature.

6.

Ms. Analiz Menezes, the learned Counsel for the respondent

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No.1 points out that this was, at the highest, a case of misdescription and by

means of amendment, correct description is now been stated in the plaint.

She points out that the survey number, which is most crucial in such

matters, was correctly described in the original plaint and the same has not

been subjected to any amendment. She pointed out that this is a case of

pre-trial amendment, since, evidence was yet to commence in the matter.

She submits that there is no error of jurisdiction and this petition may

therefore not be entertained.

7.

The rival contentions now fall for my determination. On

perusing the material on record and on due consideration of the rival

contentions, I am satisfied that the learned Trial Judge, in making the

impugned order, has not exceeded the jurisdiction vested in him to warrant

intereference under Article 227 of the Constitution of India.

8.

In the first place, as was rightly pointed out by Ms. Menezes,

learned Counsel, the application seeking leave to amend was made before

the trial in the suit could commence. Generally, where leave is sought to

amend the application prior to the commencement of the trial, the Courts

are liberal and the party seeking such leave is not non-suited on the ground

of mere delay.

9.

Secondly, this is really a case of misdescription of the suit

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