Case Note & Summary
The petitioners, Joao Felicio Rodrigues and Querobina Mildred Rodrigues, filed a writ petition challenging an order dated 9 January 2013 passed by the Civil Judge, Senior Division at Mapusa, which rejected their application to amend the counter claim in a suit. The original counter claim sought an access through the suit property and a permanent injunction restraining the respondents from obstructing that access. The proposed amendment aimed to amplify and clarify the petitioners' stand that the disputed access belonged to both the petitioners and the respondents (who are brothers) and to seek a declaration to that effect. The trial court dismissed the application solely on the ground that the amendment would change the nature and character of the suit, without specifying how. The respondents opposed the amendment, arguing that allowing any amendment after filing the counter claim is barred under Order 8 Rule 6A of the Code of Civil Procedure, 1908. The High Court, per Justice F.M. Reis, held that the trial court erred in rejecting the application without explaining how the character of the suit would change. The court noted that the amendment was merely to amplify the existing pleadings and was necessary to decide the entire controversy. The court also rejected the respondents' argument under Order 8 Rule 6A, stating that the bar applies only to filing a counter claim after the written statement, not to amendments thereof. The High Court allowed the writ petition, set aside the impugned order, and permitted the petitioners to amend the counter claim, directing the trial court to proceed with the suit expeditiously.
Headnote
A) Civil Procedure - Amendment of Pleadings - Counter Claim - Order 8 Rule 6A, Code of Civil Procedure, 1908 - The petitioners sought to amend their counter claim to amplify and clarify their stand regarding ownership of an access way. The trial court rejected the application solely on the ground that the amendment would change the nature and character of the suit. The High Court held that the trial court failed to specify how the character would change and that the amendment was necessary to decide the entire controversy. The court allowed the amendment, setting aside the impugned order. (Paras 3-7) B) Civil Procedure - Amendment of Counter Claim - Bar under Order 8 Rule 6A CPC - The respondents argued that allowing amendment after filing of counter claim is barred under Order 8 Rule 6A CPC. The High Court rejected this contention, noting that the amendment was to amplify existing pleadings and not to introduce a new counter claim. The court held that the bar under Order 8 Rule 6A applies only to filing a counter claim after the written statement, not to amendments thereof. (Paras 5-7)
Issue of Consideration
Whether the trial court erred in rejecting the application for amendment of the counter claim on the ground that it would change the nature and character of the suit.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 9/01/2013, and permitted the petitioners to amend the counter claim. The trial court was directed to proceed with the suit expeditiously.
Law Points
- Amendment of pleadings
- Counter claim
- Change in nature of suit
- Order 8 Rule 6A CPC
- Liberal approach to amendments
