Bombay High Court

SURESH KUMAR AND ANRversusAGNELO MANUEL FERNANDES

Disposal: Disposed of

Holding

The High Court held that the trial court’s order permitting the amendment was within its discretion and not liable to interference.

Summary

The petitioners challenged a February 2025 order of the Civil Judge Junior Division, Pernem, which allowed the respondent to amend the plaint in a suit for recovery of compensation under a leave‑and‑license agreement. The amendment sought to correct the agreement period from 01‑10‑2020 to 31‑08‑2021 to the correct dates of 01‑10‑2019 to 31‑08‑2020, as shown in the original agreement. Petitioners argued that the trial court exceeded its jurisdiction by permitting a belated amendment contrary to the proviso to Rule 17 of Order XVI of the CPC and that the amendment was time‑barred and prejudicial. The respondent contended that the error was inadvertent, the amendment did not alter the nature of the claim, and any limitation issue could be decided later. The High Court, relying on precedent that amendments necessary to determine the real controversy may be allowed if they do not cause injustice, held that the trial court’s discretion was unfettered and dismissed the writ petition, leaving the amendment intact and permitting the parties to raise limitation questions in the suit.

Issues considered

Whether the trial court had jurisdiction to allow amendment of the plaint at a belated stage despite the proviso to Rule 17 of Order XVI of the CPC.
Whether the amendment correcting the agreement period changes the nature of the suit or causes prejudice to the petitioners.
Whether the limitation bar can be dealt with separately without invalidating the amendment.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XVI Rule 17 (Proviso)
Constitution of India — s. Article 227

Subjects

Amendment of plaint
Proviso to Rule 17 Order XVI CPC
Limitation
Leave and license agreement
Civil procedure
Article 227
Real question of controversy
Writ petition

Judgment

2026:BHC-GOA:1916
                                              (1)                      wp-673-2026.odt



                          IN THE HIGH COURT OF BOMBAY AT GOA
                               WRIT PETITION NO.673 OF 2026

                               SURESH KUMAR AND ANOTHER
                                             VERSUS
                                AGNELO MANUEL FERNANDES
                                                 …
               Mr. Shivan Desai with Ms. Maria Viegas and Ms. Riya Amonkar,
               Advocates for Petitioners.
               Ms. Maria Correia, Advocate for Respondent.
                                                …
                                          CORAM : S. G. CHAPALGAONKAR, J.
                                          DATED : 23rd SEPTEMBER, 2026.
               FINAL ORDER:-

               1.    The petitioners takes exception to order dated 07.02.2025 passed

               below Exhibit D-13 by Civil Judge Junior Division, Pernem, Goa in

               Regular Civil Suit No.143/2021, thereby allowing amendment

               application filed by respondent/plaintiff.


               2.    The respondent instituted Regular Civil Suit No.143/2021 seeking

               recovery of money contending that petitioners entered into an

               agreement for Leave and License dated 05.04.2019 in respect of Guest

               House bearing No.229 for total compensation of Rs.2,50,000/- for

               period of 11 months starting from 01.10.2020 to 31.08.2021 and another

               agreement of Leave and License dated 05.04.2019 in respect of Plot B

               starting from 01.10.2020 to 31.08.2021 for compensation of

               Rs.10,00,000/-. The petitioners failed to pay compensation amount in

               terms of agreement. The respondent requested to clear compensation as

               per agreement. The respondent served legal notice, but plaintiff vacated

               premises without making payment of outstanding dues. The suit was
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contested by petitioners, issues were framed, respondent entered into

witness box and he would cross-examine.         At this stage, he filed

application seeking amendment in plaint contending that at the time of

filing complaint due to inadvertence period of agreement of

management was wrongly mentioned in paragraph nos.1 and 2 of plaint

as 01.10.2020 to 31.08.2021 instead of 01.10.2019 to 31.08.2020. The

petitioners opposed application. However, by impugned order dated

07.02.2025, Trial Court allowed application and permitted amendment

as prayed.


3.    Mr. Shivan Desai, learned Advocate appearing for petitioners

submits that Trial Court exceeded jurisdiction while permitting belated

amendment ignoring Proviso to Rule 17 of Order XVI of Code of Civil

Procedure. The respondent did not put forth plausible explanation for

delay in bringing amendment. Further claim which is sought to be

brought on record is time barred. The respondent consistently pleaded

about agreement period from 01.10.2020 to 31.08.2021. He maintained

same contention in his evidence affidavit and cross-examination and

now wish to withdraw same by replacing period of agreement. He

would submit that plaintiff cannot be given benefit of theory of relation

back, even if such amendment is maintained.


4.    Per contra, Ms. Maria Correia, learned Advocate appearing for

respondent supports impugned order. According to her, inadvertent
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error was crept into plaint, which has been corrected in tune with

documentary evidence on record. It neither changes nature of claim nor

it causes prejudice to petitioners. The petitioners shall be at liberty to

raise contention in defence against amendment.


5.    Having considered submissions advanced by learned Advocates

appearing for respective parties and on perusal of record, it can be

observed that respondent sought amendment to correct period of

agreement, which is stipulated as 01.10.2020 to 31.08.2021 instead

01.10.2019 to 31.08.2020. The copy of agreement dated 05.04.2019 is

part of record, which stipulates management period of 11 months

starting from 01.10.2019 to 31.08.2020.             In this background,

amendment would not change very nature of suit and same would be

required for final adjudication of dispute between parties. It is true that,

amendment is at belated stage after commencement of trial. Therefore,

respondent was under obligation to put forth explanation for not

bringing amendment before commencement of trial. Only explanation

given is that inadvertent error was observed only after commencement

of trial.   The aforesaid explanation may fall short.              However,

amendment in question is required for effective adjudication of dispute

between parties and same does not change nature of dispute in suit. In

this backdrop, power of Court to permit amendment is unfettered by

restrictions under Proviso to Rule 17 of Order XVI of CPC.
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6.       In case of Life Insurance Corporation of India Vs. Sanjeev

Builders Private Limited and Anr1, it has been observed that all

amendments which are necessary for determining real question of

controversy needs to be allowed, where it does not cause injustice or

prejudice to other side. Even in case where claim by way of amendment

is time barred, amendment can be allowed keeping issue of limitation to

be framed separately for decision. In this backdrop, this Court finds that

order impugned does not require interference under Article 227 of

Constitution of India.


7.       In result, Writ Petition stands dismissed.


8.       Needless to state here that, petitioners shall be at liberty to raise

question of limitation by filing additional written statement as regards to

claim introduced by way of amendment and Trial Court would consider

question of limitation as has been kept open to be considered at the time

of final decision in suit.


                                           (S. G. CHAPALGAONKAR)
                                                    JUDGE
Devendra/September-2026




1    AIR 2022 Supreme Court 4256.

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