- (1.) HEARD Mr. Shivan Dessai, Advocate for the petitioners, Mr. S. D. Lotlikar, Senior Advocate for the respondent nos. 1 to 3, Mr. G. Teles, Advocate for respondent nos. 5 and 6. None present on behalf of respondent no. 4.
(2.) RULE. By consent heard forthwith. By this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 10.12.2010 passed by Civil Judge, Senior Division, Mapusa in Special Civil Suit No.81/2003/A dismissing the application for amendment dated 7.9.2010. Petitioners are plaintiffs in the above suit filed against respondents/defendants seeking relief of cancellation of sale deed and other consequential relief. The plaintiffs filed the application dated 7.9.2010 seeking amendment of plaint which has been rejected by the impugned order on the ground that no sufficient cause has been shown and matter is at the stage of plaintiff's evidence and issues have been already being framed. The suit was fixed for evidence on 13.7.2010 on which date plaintiffs sought time to lead evidence which was granted.
(3.) MR. Dessai learned Counsel for the petitioners, placing reliance upon the judgment of the Apex Court in the case of Baldev Sing and others Vs. Manohar Singh and another, (2006) 6 SCC 498 submitted that in the said case the Apex Court has held that commencement of trial under Order 6 Rule 17 must be understood in the limited sense as meaning the final hearing of the suit, examination of witness, filing of documents and addressing of arguments. In the present case admittedly the evidence of plaintiffs has not begun. This being the position the reason given by the learned trial Court for rejecting the amendment sought by the plaintiffs is patently unsustainable in law. This position has been fairly conceded by learned counsel appearing for the respondents. In view of above, impugned order dated 10.12.2010 passed by the learned trial Court is quashed and set aside and the learned trial Court is directed to decide the application afresh in the light of settled principles governing an application for amendment filed by the plaintiffs in the suit. The trial Court shall decide the application before proceedings with the evidence in the suit.;