Case Note & Summary
The petitioner, Miss Shirley Victoria Menezes, filed a civil suit (Regular Civil Suit No.69/1995/B) in the Court of Civil Judge, Senior Division, Mapusa, seeking a declaration and mandatory injunction against the respondents/defendants, alleging that they had blocked a traditional access shown in the plan. Both parties led evidence. Just before final arguments, the plaintiff filed an application seeking amendment of the plaint by adding paragraph 11(a) to plead that the suit access had been used continuously, peaceably, openly, uninterruptedly, publicly, despite objection, as an easement and as of right since the year 1967. The trial court dismissed the application on the ground that serious prejudice would be caused to the defendants if the amendment was allowed. The petitioner challenged this order under Article 227 of the Constitution of India before the Bombay High Court at Goa. The High Court observed that the plaintiff had originally claimed a traditional access, and the proposed amendment sought to add an alternative plea of easement by prescription based on the same access. The court noted that the amendment did not change the nature of the suit and that no prejudice was caused to the defendants, as they could be permitted to lead further evidence if necessary. The High Court held that the trial court's finding of serious prejudice was patently unsustainable in law. Consequently, the impugned order dated 25/1/2008 was quashed and set aside, and the amendment application was allowed. The trial court was directed to permit the defendants to lead further evidence if they so desired. The petition was disposed of with no order as to costs.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order 6 Rule 17 CPC - Prejudice - The plaintiff sought to add a plea of easement by prescription after evidence was closed but before final arguments. The trial court dismissed the application on the ground of serious prejudice to the defendants. The High Court held that the amendment did not change the nature of the suit and no prejudice was caused as the defendants could lead further evidence if necessary. The impugned order was quashed and the amendment was allowed. (Paras 1-6) B) Easement - Prescriptive Easement - Easement Act, 1882 - Section 15 - The plaintiff originally claimed a traditional access and later sought to plead that the access was used as an easement of right since 1967. The High Court noted that the amendment was merely an alternative plea based on the same facts and did not introduce a new case. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in dismissing the amendment application on the ground of serious prejudice to the defendants when the amendment sought to add a plea of easement by prescription based on the same access already claimed as traditional access.
Final Decision
The impugned order dated 25/1/2008 is quashed and set aside. The amendment application is allowed. The trial court is directed to permit the defendants to lead further evidence if they so desire. The petition is disposed of with no order as to costs.
Law Points
- Amendment of pleadings
- Prejudice to opposite party
- Easement by prescription
- Liberal approach to amendments
- Article 227 of Constitution of India
