AJIT J. POROB Vs. LAVINA J.B. MACHADO

JUDGEMENT

(1.) HEARD Shri A. Kamat, learned Counsel appearing for the petitioner and Shri J. Vaz, learned Counsel appearing for the respondents. The above petition challenges an order passed by the learned Civil Judge Senior Division, Mapusa, in Civil Misc. Application No. 80/2004 in Special Civil Suit No. 51/2000 dated 30.12.2004 whereby an application dated 12.02.2004 filed by the respondents under Order 6 Rule of Civil Procedure Code for amendment of the plaint and incorporating a relief for damages therein came to be allowed. The respondents filed a suit for recovery of money essentially on the ground that they have entrusted the work of constructing a bungalow for the respondents to the petitioner and in such process some amounts were advanced to the petitioner. It is further their case that the work of bungalow was left incomplete and consequently it is their claim that they are entitled to recover from the petitioner a sum of Rs. 1,28,551.70 together with interest thereon. The petitioner has filed his written statement disputing the claim put forward by the respondents and inter -alia filed a counter claim, alleging that the petitioner is entitled to recover from the respondents on account of the work carried out to the bungalow entrusted to the petitioner a sum of Rs. 2,05,000/ - together with interest thereon. The respondents filed their written statement to the said counter claim disputing the claim put forward by the petitioner. During the course of the said proceedings, the respondents filed an application for amendment alleging inter -alia that on account of some defects to the bungalow constructed by the petitioner, the respondents have suffered damages to the tune of Rs. 2,61,000/ -. The learned Judge by the impugned order allowed the application for leave to amend the plaint. Being aggrieved by the said order, the petitioner has filed the above petition.

(2.) SHRI Kamat, learned Counsel appearing for the petitioner has raised two contentions to point out that the impugned order cannot be sustained. The learned Counsel points out that the petitioner has stopped the work in the year 2000 and the claim put forward by the respondents for the alleged damages in the year 2004 which according to him is barred by law of limitation. Next contention advanced by the petitioner is that such claim of damages has changed the cause of action of the suit and as such the relief is inconsistent with the original relief sought by the respondents. The learned Counsel as such submits that the impugned order cannot be sustained and deserves to be quashed and set aside.

(3.) I have carefully considered the submissions of the learned Counsels. I have also perused the plaint, written statement as well as the application for amendment filed by the respondents and the reply thereto. On perusal of the plaint, it appears that the suit is for recovery of money on account of the fact that the respondents are entitled to recover part of the amount paid to the petitioner. The petitioner has also filed a counter claim, claiming some amounts from the respondents. The contention of Shri Kamat, learned Counsel appearing for the petitioner to the effect that the claim for damages is barred by law of limitation is a matter which cannot be decided on the face of the material on record. On one hand, Shri Kamat, learned Counsel appearing for the petitioner points out that the cause of action for such damages accrued in the year 2004 and on the other hand, Shri Vaz, learned Counsel appearing for the respondents points out that the right to claim the damages arose only after the filing of the suit when the respondents had rectified the defects to the construction of the bungalow carried out by the petitioner. These disputed questions of fact would have to be decided only after recording of the evidence by the parties. Hence, considering that the point of limitation raised by the petitioner is arguable and would have to be decided only after recording of the evidence, I find it appropriate that the issue of limitation will have to be kept open to be decided on merit after the evidence is recorded by the respective parties in support of their rival contentions.