M/s Daheja Minerals Vs M/s H.L. Nathurmal

@JUDGMENTTAG-ORDER

N.A. Britto, J.@mdashThe Writ Petitioners are Defendants in R.C.S. No. 47/95/C. In this Writ Petition, they have challenged three Orders of the learned Civil Judge, Junior Division at Bicholim. Heard learned Counsel on behalf of both parties.

2. The plaintiffs(Respondents herein) have filed a Civil Suit against the said Defendants for injunction simpliciter in relation to the property covered by suit mining concession No. 39 dated 18-5-1953. The Defendants have contested the suit denying the title claimed by the plaintiffs.

3. Plaintiffs evidence is completed. The Managing Director of the Defendants is under cross-examination. Defendants application for amendment has been rejected by Order dated 30-10-2009. By the proposed amendment to the written statement the Defendants wanted to plead that there was a kutcha/mud road outside the mining concession No. 39/53, and, according to the Defendants the said road was shown on the very plan produced by the plaintiffs. There was an earlier suit filed by the Defendants bearing Civil Suit No. 54/2006/A which was dismissed for non prosecution. The Defendants also had filed a counterclaim in R.C.S. No. 47/95/C which was ordered to be excluded by Order dated 17-2-2009 of the learned Civil Judge, Junior Division and the said Order has attained finality. The learned Civil Judge has dismissed the application for amendment, interalia, observing that the proposed amendment was the subject matter of Special Civil Suit No. 52/2006/A as well as the counterclaim which has been excluded, and, therefore the proposed amendment was an attempt to re-agitate the subject matter of the said Civil Suit. The learned trial Court has further observed that an amendment would be allowed only in case it was necessary to determine the real questions in controversy between the parties provided that the party could not have amended the pleading inspite of due diligence and could not have raised the matter before the commencement of the trial. The learned trial Court has further observed that the Defendants did not show any diligence for amending the written statement and the same could not be allowed as it was untenable in law.

4. Shri Zaveri, learned Counsel on behalf of the Defendants submits that the learned trial Court ought to have allowed the amendment as the rules regarding amendment of plaint and the amendment of the written statement are different and in this regard Shri Zaveri has placed reliance on Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., wherein the Apex Court has stated that the amendment of the plaint and the amendment of the written statement are not necessarily governed by the same principle although some of the general principles are certainly common to both. The Apex Court has also stated that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action, and the Courts are always more liberal in allowing the amendment of the written statement than of the plaint.

5. On the other hand, Shri P. S. Rao, learned Counsel on behalf of Respondent No. 1/plaintiff has placed reliance on Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, wherein it is stated that the first condition which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of the real question in controversy, and, if that condition is not satisfied, the amendment cannot be allowed.

6. In my view, the impugned Order as regards amendment calls for no interference in exercise of supervisory jurisdiction. Considering the nature of the relief sought by the plaintiff and the proposed amendment, in my view, the same was unnecessary to decide the controversy between the parties. Moreover, the plea sought to be raised by way of amendment was already taken in the Civil Suit filed by the Defendants and the counterclaim raised by them, and the suit was dismissed for non prosecution, and the counterclaim was excluded, and as such there is no question of any gross injustice being caused to the Defendant.

7. Coming to the second Order dated 6-2-010, Shri Zaveri, learned Counsel appearing on behalf of Defendants submits that the application on which the said Order was passed in substance was nothing but an application for adjournment. Accepting the said statement, the said Order dated 6-2-2010 is hereby set aside. The Defendants would be entitled to produce certified copies of documents mentioned therein in accordance with law.

8. The third Order is dated 16-2-2010 by which the Defendants evidence has been closed. Firstly, without going to the merits, it may be observed that the learned trial Judge was expected to show some latitude to the Defendants" managing director because of his age, in answering the questions put to him, as the Defendants'' managing director was 79 years old. That apart, Shri Zaveri, learned Counsel on behalf of the Defendants submits that the Defendants evidence could not have been closed unless an inquiry was held in terms of Order 32, Rule 15, C.P.C. and in this context, learned Counsel has placed reliance on the case of Raveendran Vs. Sobhana and Another, wherein the learned Single Judge has held that mental infirmity is not mental disorder. It is not mental illness or unsoundness of mind or insanity. It only indicates the weakness of intellect, and in the particular context of Order 32, Rule 15, weakness of intellect to the extent of making a person incapable of protecting his interests in the litigation. Thus, a person who is not of unsound mind may, yet be a person who is mentally infirm, thus entitling him to the protection under Order 32, Rule 15, C.P.C.

9. In the case of Kasturi Bai and Others Vs. Anguri Chaudhary, the Apex Court referring to Order 32, Rule 15, C.P.C. has observed that a bare perusal of the said provision, it is evident that the Court is empowered to appoint a guardian in the event the person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the Court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any reason of any mental infirmity, an appropriate order thereunder can be passed.

10. As already stated, the learned trial Court acted in a hurry in closing the Defendants evidence without giving any latitude to his old age. In case the said Defendant was not answering the questions to the point, a note could have been made in that regard but certainly not proceeded to close his cross-examination. Consequently, the third Order dated 16-2-2010 is hereby set aside.

11. Consequently, the Writ Petition partly succeeds. The Orders dated 6-12-2010 and 16-2-2010 are hereby set aside with no order as to costs. Parties to appear before the learned Civil Judge, Junior Division on 26-7-2010 at 2.30 p.m.