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Shri Rajaram Naik Versus The State of Goa, The Director of Mines and Geology, Government of Goa, And Chowgule & Company Pvt. Limited,

2015 (8) TMI 1407 - BOMBAY HIGH COURT

Illegal mining and extraction of iron ore - permanent injunction suit - amendment sought to be introduced by para 14(B) and prayer clause (bb) - Held that:- In the present case, as indicated above, the suit is basically filed on the allegation that the petitioner is engaged in illegal mining and extraction of iron ore from property survey no.7 of village Ambelim and the relief claimed in the suit is permanent injunction against the petitioner from carrying out any such mining activity or extract .....

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y of grant of amendment when the Court finds that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso in fact aims at balancing the conflicting considerations for expeditious disposal of the suit on one hand and a genuine need of a party to effect amendments. - Coming back to the present case, the proposed amendment as noticed earlier is only an amplification of the pleadings already on record in which there are some subseque .....

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, J. Mr. Vilas P. Thali, Advocate for the Petitioner. Mr. Prabhudessai, Mr. P. Lotlikar waives service for respondents JUDGMENT: C. V. BHADANG 2. By this petition, the petitioner (original defendant no.3) is challenging the order dated 21/1/2015 passed by the learned District Judge below application at Exhibit 87/D in Civil Suit No.3/2008. By the impugned order, the application (Exhibit 87/D) filed by the third respondent (original plaintiff), for amendment of the plaint has been allowed. 3. The .....

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at villages Gavanem and Ambelim of Sattari Taluka admeasuring 100 hectares. By virtue of the Goa, Daman and Diu Mining Concession (Abolition and Declaration of the Mining Leases) Act 1987, the concession in favour of the third respondent was deemed to be a lease. The third respondent had applied on 14/11/1988 to the Government of Goa for renewal of the said mining lease, which application was rejected by the order dated 20/10/1989. 5. Sometime in the month of October 2007, the representative of .....

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m carrying on any mining activity or extracting any ore, in the property surveyed under no.7 of village Ambelim and restraining them from otherwise interfering with the same or from removing, transporting the ore illegally extracted by them from the survey no.7. A mandatory injunction was also sought against the first and second respondents for taking action against the petitioner. 6. It is undisputed that the third respondent had earlier filed an application for amendment in October 2010, which .....

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real controversy in dispute. 8. The application was opposed on behalf of the petitioner mainly on the ground that the amendment sought would introduce a claim which is barred by time and that it is a belated attempt to amend the plaint, which would be in breach of the proviso to Rule 17 of Order 6 of C.P.C. It is also contended that the amendment is not relevant in so far as the controversy in the suit is concerned. 9. The Learned District Judge came to the conclusion that the amendment was bas .....

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an appropriate time. The learned District Judge also found that the amendment was necessitated on account of subsequent developments and, as such, the proviso to Rule 17 of Order 6 would not be available to the petitioner to oppose the amendment. It was found that the amendment would be necessary for deciding the real controversy between the parties. It was also found that the proposed pleadings are necessary and relevant for deciding the suit and no prejudice of whatsoever would be caused to t .....

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ubmitted by Mr. Thali, the learned counsel appearing for the petitioner that the amendment except, as proposed in paras 14(B) and the prayer clause (bb) is not opposed. In other words, Shri Thali has confined his challenge only to the amendment, as proposed in para 14(B) and prayer clause (bb). It is submitted that by addition of para 14(B) and the consequent prayer clause (bb), for the first time, a claim in the nature of compensation/damages to the tune of ₹ 4 crores is sought to be intr .....

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oncerned. 12. The learned counsel for the petitioner has placed reliance on the following decisions in support of his submissions: (i) K. Raheja Constructions Ltd. and another Vs. Alliance Ministries and others, reported in 1995 Supp (3) SCC 17. (ii) Ajendraprasadji N. Pandey and anr. Vs. Swami Keshavprakeshdasji N. and others, reported in (2006) 12 SCC 1. (iii) Shiv Gopal Sah Alias Shiv Gopal Sahu Vs. Sita Ram Saraugi and others, reported in (2007) 14 SCC 120. He therefore submitted that the pe .....

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in nature. It is submitted that the allegation that the petitioner had engaged in illegal mining and extraction of iron ore, is already there and only the quantification of the damage is made by addition of paras 14(B) and prayer clause (bb). The learned Senior Counsel would submit that by an order dated 5/6/2008, the Trial Court while dismissing the application for temporary injunction had restrained the petitioner from carrying out any mining activity or extracting any ore or transporting any .....

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Court on 18/1/2011 and that part of the order which had removed the restrain placed on the petitioner was recalled and the said restraint was restored. It is submitted that in the meantime, the petitioner managed to remove the iron ore which was already extracted. The learned Senior Counsel submitted that although the application for amendment does not set out the details, the amendment is necessitated on account of the fact that the ore which was already extracted was removed after filing of th .....

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such, has rightly been allowed. 15. Mr. Prabhudessai, the learned Additional Government Advocate for the respondents no.1 and 2 had nothing much to say in the matter, as the dispute is essentially between the private parties. 16. I have considered the rival circumstances and the submissions made. The only point which arises for determination is as to whether the impugned order allowing the amendment to the extent of introduction of para 14(B) and prayer clause (bb) needs to be set aside. My ans .....

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roperty survey no.7 of village Ambelim and the relief claimed in the suit is permanent injunction against the petitioner from carrying out any such mining activity or extracting the iron ore, or from removing or transporting the same. The amendment sought to be introduced by para 14(B) and prayer clause (bb) reads as under: 14 (B) The Plaintiff states that by carrying out illegal mining in the property bearing Survey no.7, which falls within the mining concession/deemed lease granted to the plai .....

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Crores of Rupees, for the loss which he has caused to the Plaintiff. The Plaintiff is entitled to recover the said amount from the Defendant No.3. Prayer (bb) For a Decree, directing the Defendant No.3 to pay to the Plaintiff an amount of ₹ 4 (Four) Crores, as and by way of damages, for the loss caused, by illegal mining and removal of Ore, and illegal sale, transfer or appropriation of the same with interest @ 12% per annum, from the date of filing of the Suit, till final payment. 18. It .....

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us clear that the proposed amendment, does not derogate from the case made out in the plaint and to a certain extent even the amendment as proposed in para 14(B) would relate to subsequent developments, namely, the allegation about the removal of iron ore which was already extracted. In that view of the matter, no exception can be taken to the finding recorded by the learned District Judge that the proposed amendment would be necessary to decide the real controversy between the parties in the su .....

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at liberty to raise appropriate contention in this regard. 20. In the case of Pankaja and others, (supra), the appellants/plaintiffs had filed a suit for permanent injunction and for possession etc. It was claimed that during the pendency of the suit, the respondent in violation of the order of the Court had further encroached in the suit property to the extent of 15' x 15' and on that account the appellant had sought amendment seeking possession of the encroached area. The amendment was .....

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udicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 21. It can thus be seen that the question whether the amendment would really serve the cause of justice and would avoid further .....

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ocedure is concerned, the same reads as under: 17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion th .....

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due diligence. The proviso would not come in the way of grant of amendment when the Court finds that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso in fact aims at balancing the conflicting considerations for expeditious disposal of the suit on one hand and a genuine need of a party to effect amendments. 25. Coming back to the present case, the proposed amendment as noticed earlier is only an amplification of the pleadings a .....

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he contention that the amendment is not relevant for the controversy, it is trite that the merits of the amendment cannot be gone into at this stage. As noticed earlier, the District Judge has found, and to my mind rightly so, that the amendment would be necessary for deciding the real controversy in dispute. 27. In the case of K. Raheja Constructions Ltd. and anr., supra, the plaint was sought to be amended for introduction of a relief of specific performance on the ground that it was subsequen .....

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