JOAO FELICIO RODRIGUES Vs. JOSE MAXIMIANO RODRIGUES

JUDGEMENT

(1.) Heard Shri R. Menezes, learned counsel appearing for the petitioners and Shri A.D. Bhobe, learned counsel appearing for the respondents. Rule. Heard forthwith with the consent of the learned counsel. Learned counsel appearing for the respondents waives service.

(2.) The above petition challenges an order dated 9/01/2013 passed by the learned Civil Judge, Senior Division at Mapusa whereby an application filed by the petitioners to amend the counter-claim came to be rejected.

(3.) Shri R. Menezes, learned counsel appearing for the petitioners has assailed the impugned order, on the ground that the learned Judge dismissed the application only because such amendment would change the nature and/or character of the suit. The learned counsel further points out that though there are findings to that effect in the impugned order nevertheless the learned Judge has not spelt out in what manner the character of the suit would change. The learned counsel further submits that the original counter-claim filed by the petitioners was inter alia to claim an access through the suit property and for a permanent injunction to restrain die respondents from obstructing the petitioners from using such access. The learned counsel further submits that the amendment sought to be carried out by the petitioners is to amplify and/or clarify the stand taken by the petitioners in the counter-claim. The learned counsel further submits that it is the contention of the petitioners that the disputed access belongs to the petitioners and the respondents, who are brothers and that the petitioners are entitled for a declaration to that effect. The learned counsel further submits that even in the original pleadings and the counter-claim the stand of the petitioners was that the disputed access belongs to the petitioners as well as the respondents. The learned counsel further submits that the proposed amendment is essential to decide the entire controversy. The learned counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously rejected the application for amendment.