TMI Blog2015 (8) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 subsequent developments and the quantification of the damages. As noticed earlier, it is claimed that the iron ore which was already extracted was removed in the interregnum when the restraint placed on the petitioner was removed by this Court, while dismissing the Appeal From order and was restored when the review application came to be allowed. If that be so, it cannot be said that the third respondent had acted without due diligence. - WRIT PETITION NO. 259 OF 2015 - - - Dated:- 31-8-2015 - C. V. BHADANG, 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 (origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er undisputed that in the civil suit, at present, the evidence of the plaintiff is being recorded. 7. In these circumstances, an application at Exhibit 87/D came to be filed on behalf of the third respondent seeking addition of paras 10(3), 11(B), 14(B) and the prayer clause (bb) in the plaint. It was contended that the amendment is necessitated on account of some subsequent developments and was necessary for deciding the 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 based on the same cause of action, namely the right flowing in favour of the plaintiff under the Diploma of Concession bearing no.51/1958. In so far as the question of the amendment being barred by limitation is concerned, the learned District Judge found that this can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 petition be allowed and the amendment to the extent of allowing introduction of para 14 (B) and prayer clause (bb) be set aside. 13. On the contrary, it is submitted by Mr. Lotlikar, the learned Senior Counsel for the third respondent, that once the petitioner is not opposing the amendments which are necessitated on account of subsequent developments, as proposed in para 10 (3) and 11 (B), the amendment as per para 14 (B) could not have been opposed. It is submitted that the same is consequential 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the proceedings, albeit subject to the embargo placed in proviso to Rule 17 of Order 6 of C.P.C. 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 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 plaintiff, the Defendant no.3 has caused loss to the Plaintiff. No person other than the Plaintiff, could legally carry out any mining activity in any other property, including survey no.7, falling within mining concession / demand mining lease, bearing No.51/58. The value of the Ore illegally extracted by the Defendant No.3, prior to institution of the Suit and thereafter, would be to the tune of 4 (Four) Crores of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 allowed by the Trial Court. In the context, the Hon'ble Apex Court has held thus in para 14 of the judgment: 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be allowed. If that be so, it cannot be said that the third respondent had acted without due diligence. 26. In so far as the 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 subsequently discovered that the Charity Commissioner had granted permission for sale of the trust property and therefore the petitioners/plaintiffs were entitled to a decree of specific performance. The Hon'ble Apex Court found that the grant of permission by the Charity Commissioner for alienation, was not a condition precedent for filing suit for specific performance and the decree of specific performance is always subject to grant of such permission. On facts, it was found that the petitioners having expressly admitted that the respondents have refused to abide by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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