CALVIN RODRIGUES, SON OF LATE VINCENT RODRIGUES Vs. MARIA AMBERTA FERNANDES, WIFE OF ALEXANDRE HERMENEGILDO FERNANDES
LAWS(BOM)-2017-4-219
HIGH COURT OF BOMBAY
Decided on April 18,2017

Calvin Rodrigues, Son Of Late Vincent Rodrigues Appellant
VERSUS
Maria Amberta Fernandes, Wife Of Alexandre Hermenegildo Fernandes Respondents

JUDGEMENT

M.S. Sonak, J. - (1.) Heard Mr. Deepak Gaonkar, the learned counsel for the petitioners and Mr. Rohit Bras De Sa, the learned counsel for the respondents.
(2.) Rule. With the consent of and at the request of the learned counsel for the parties heard forthwith.
(3.) Mr. Gaonkar, the learned counsel for the petitioners has very ably assailed the orders dated 30/9/2016 made by the learned trial Judge granting leave to the respondents to amend the plaint as well as the written statement to the counter claim. Mr. Gaonkar submits that the trial in the suit had already commenced and there was no material on record to establish due diligence on the part of the respondents. In such circumstances, Mr. Gaonkar submits that the proviso to Order 6 Rule 17 of the C.P.C was clearly attracted and the amendment applications ought not to have been allowed. Mr. Goankar further submits that the plaint as initially instituted had made reference to the property surveyed under no.225 (part) (old cadastral) and the house therein presently surveyed under no.263/8 as admeasuring 125 sq.mtres. The proposed amendment seeks to enhance this area from 125 to 152 sq.mtrs. In the bargain, the respondents, have also thrown a direct challenge to the survey records and the description of the area in the survey records. Mr. Gaonkar also points out that in the plaint as originally instituted, there is reference in para 4 to property survey under no.263/4 which was stated as admeasuring 1775 sq.mtrs. The proposed amendment, however seeks to reduce this area at 1566 sq.mtrs. Mr. Gaonkar submits that said exercise amounts to resiling or withdrawing from the admissions made in the plaint. He relies upon the decision of the Hon'ble Supreme Court in Heeralal Vs. Kalyan Mal, 1998 1 SCC 278 to submit that no party may be permitted by means of an amendment to withdraw or resile from admissions made in the pleadings. Mr. Gaonkar submits that the learned trial Judge has only taken cognizance of the submission relating to withdrawal of admissions, but has failed to adjudicate upon the same.;


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