UMAKANT B KENKRE Vs. YESHWANT P SHIRODKAR

JUDGEMENT

(1.) BOTH these revisions arise out of the same Order passed by Civil Judge in the same suit. Civil Revision 49/98 is filed by original defendants 1 and 2 and Civil Revision 103/98 is filed by original defendants 3 and 4 (hereinafter referred to as defendants ). By impugned Order dated 17th September 1997, the trial Court had allowed the amendment sought by the respondents/original plaintiffs (hereinafter referred to as plaintiffs ).

(2.) IN order to appreciate the matter it is necessary to give brief background in which this amendment was sought by the plaintiffs. The plaintiffs had filed suit for specific performance seeking to direct the sole defendant, at that stage, to specifically perform the agreement of sale made in June 1981 and to execute sale deeds in favour of the plaintiffs conveying Plot Nos. 6 and 7. No compensation for its breach either in addition to or in substitution of such performance was sought. However, in the alternative, the plaintiffs had sought damages for breach of contract to the tune of Rs. 5 lakhs. By amendment application dated 27th September 1993, the plaintiffs sought to delete some of the paragraphs of the plaint as well as relief relating to specific performance. This amendment was allowed by the trial Court. After this amendment was allowed the principal prayer which remained was in relation to damages for breach of contract to the tune of Rs. 5 lakhs. This amendment was granted vide order dated 25th November 1994. After this there was change of advocate and an application for amendment, which is subject matter of these revisions, was filed by the plaintiffs on 2nd April 1997. In this application for amendment the justification for moving the application is stated to be as under in paragraph 3 of the said application:---

(3.) LEARNED advocate Shri Kantak placed before me letter dated 22nd June 1981 signed by F. B. Kenkre and addressed to plaintiff No. 1 on the basis of which the plaintiffs had filed the suit for specific performance and in the alternate damages for breach of contract to the tune of Rs. 5 lakhs. It was pointed out that this letter is signed only by F. B. Kenkre, who had received sum of Rs. 20,000/- from the plaintiffs on 22nd June 1981; that the said F. B. Kenkre expired in December 1982 and that the said letter dated 22nd June 1981, though stated to have been signed for U. B. Kenkre, cannot bind the said U. B. Kenkre; Plot No. 6 in question was sold by wife of F. B. Kenkre, who is defendant No. 3 and Plot No. 7 was sold by defendants 1 to 4 in the year 1988 by registered sale deeds and the suit was filed after three years on 24th June 1991. It has been pointed out that these facts relating to sale of the said plots were placed before the Court vide affidavit dated 4th March 1993, which is on record at pages 40 and 41 and it was only after this that the plaintiffs had filed the first amendment application deleting prayer relating to specific performance. In these circumstances, according to learned advocate Shri Kantak, the trial Court could not have restored the relief relating to specific performance and the other reliefs or amendment sought by the plaintiffs since the plaintiffs were fully aware of all the facts when the first amendment application was moved. He has also pointed out certain mis-statements of facts recorded by the Civil Judge, to which I shall make reference, at a later stage, while discussing the case on merits. Learned Advocate Shri Kantak had also pointed out that the trial Court had not adhered to the point of limitation which was raised by the defendants. Relying upon judgment of this Court in (Smt. Clara Menezes v. John Baptist Rodrigues and another), reported in 1997 (2) Goa L. T. 294, it was urged that the reasons for amendment given in paragraph 3 of the amendment application, due to change of Advocate and inadvertence, cannot be treated as justifiable reasons to allow the amendment in question.