Bombay High Court
NAZARIO SEBASTIAO PINTO AND ANRversusMARIA ZELIA FILOMENA MAURA MASCARENHAS PORTUGAL AND 15 ORS
- Disposal
- Partly allowed
Holding
The amendment to the written statement was allowed, but the counter‑claim was rejected.
Summary
The petitioners, Nazario Pinto and others, sought to amend their written statement and introduce a counter‑claim in a civil suit concerning co‑ownership of a property and the validity of a 1994 deed of sale. The trial court rejected the amendment, deeming it belated since the petitioners had been aware of the inventory proceedings since 1994. The petitioners argued that under Order VI Rule 17 of the CPC the amendment was necessary to present subsequent events affecting the dispute, while the respondents contended that the suit was at the final hearing stage and the amendment should not be entertained. The High Court held that the amendment to incorporate facts about the inventory proceedings could be allowed, but a counter‑claim could not be introduced at such an advanced stage, citing Supreme Court precedent. Consequently, the writ petition was partly allowed: the amendment was permitted without the right to lead further evidence, and the counter‑claim was rejected.
Issues considered
- Whether an amendment to the written statement can be allowed at the final stage of a civil suit under Order VI Rule 17 CPC.
- Whether a counter‑claim can be introduced at the final hearing stage of the suit.
- Whether the High Court has jurisdiction under Article 227 to interfere with the trial court's order.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order VI Rule 17
Subjects
- amendment of pleadings
- counter claim
- civil procedure
- Order VI Rule 17
- Article 227
- partition
- inventory proceeding
- deed of sale
- late amendment
- writ jurisdiction
Judgment
2026:BHC-GOA:1699
Andreza
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 85 OF 2025
1. Mr. Nazario Sebastiao Pinto & anr. … Petitioners
Versus
1. Mrs. Maria Zelia Filomena Maura ...Respondents
Mascarenhas Portugal & Ors.
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Mr. J. J. Mulgaonkar, Advocate with Ms. Divyabharati Naidu,
Advocate for the Petitioner.
Mr. Shivan Desai, Additional Government Advocate for with
Ms. Riya Amonkar, Advocate for Respondent Nos. 2 to 7.
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CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : 19th AUGUST 2026
PRONOUNCED ON : 25th AUGUST 2026
ORDER
1. The Petitioner impugns Order dated 25 th November 2024,
passed by Civil Judge, Senior Division at Margao, vide Exhibit 245 in
Regular Civil Suit No. 578/2010/A, whereby the Petitioners’
application seeking amendment in written statement and for
introducing counter claim, came to be rejected.
2. The Petitioner is the defendant in the suit which is instituted in
the year 2004 seeking a declaration that the plaintiffs are co-owners of
suit property and that Deed of Sale dated 5 th September 1994 executed
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by sister of the plaintiff in favour of defendant no. 10, is null and void.
The suit property was originally owned by Mr. Pedro Joaquim Carlos
Mascarenhas and his wife Mrs. Maria, who passed away leaving behind
seven children. The plaintiff no. 1 and Mrs. Maria, are out of seven
children. Upon death of Mr. Pedro and his wife, Inventory Proceeding
No. 18640/1970/II was instituted before the Comarca Court of Salcete
at Margao, for partition and inheritance of couple. The present suit
property was enlisted in that inventory. The inventory was disposed of
vide Judgment and Order dated 28.01.2020, whereby allotment of suit
property was made along with other properties. In present suit,
plaintiffs are raising challenge to the Partition Deed dated 22.08.1967
whereby, Mrs. Maria is alleged to have acquired title to the property. It
appears that Mrs. Maria executed Deed of Sale dated 05.01.1994 in
favour of defendant no. 10.
3. Insofar as inventory proceeding instituted upon death of Mr.
Pedro and his wife are concerned, indisputably, the suit property was
listed in the inventory and the suit property is culminated in shares
being allotted to all the children including the plaintiff. The defendant
no. 10 had neither intervened in the inventory proceeding nor sought
delisting the suit property from the inventory although he had
knowledge about the inventory proceedings since 1994 itself. In this
backdrop, the Petitioner/defendant no. 10, filed application at Exhibit
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25th August 2026
245 seeking amendment in the written statement to bring on record
subsequent events that took place during pendency of the suit. So also,
introduced the counter claim seeking a declaration of nullity of the
chart of allotment made in the Inventory Proceedings. The Trial Court,
after considering the rival submissions, rejected the application
basically for the reason that the Petitioner/defendant no. 10 acted with
complete lack of diligence. He slept over his right since 1994 till 2024
and felt that amendment application is belatedly filed.
4. Mr. J. J. Mulgaonkar, learned Advocate appearing for the
Petitioners, would submit that the Trial Court failed to exercise
jurisdiction under Order VI Rule 17 of the Civil Procedure Code, 1908
(‘CPC’) particularly when amendment was on the basis of subsequent
events of filing of this suit. The amendment was absolutely necessary
for adjudication of the dispute in the suit and the facts sought to be
introduced by way of amendment were necessary to decide controversy
between the parties. The Petitioner cannot be non-suited only because
he did not intervene in the Inventory Proceedings, which were alleged
to be perverse and arbitrary and it does not preclude him from
challenging the outcome of such inventory proceedings.
5. Per contra, Mr. Shivan Desai, learned Counsel appearing for
Respondent Nos. 2 to 7, submit that the suit is pending since 2004.
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25th August 2026
The application for amendment was filed at fag end of the trial when
parties were to proceed for final arguments. The Trial Court has rightly
rejected the application after recording elaborate reasons for such
decision which need not be interfered invoking writ jurisdiction of this
Court under Article 227 of the Constitution of India.
6. Having considered submissions advanced by learned Advocates
appearing for respective parties and upon perusal of the material
tendered and submitted before this Court, this Court finds that the suit
instituted in the year 2004 has reached the stage of final hearing. The
Petitioner made application for amendment at belated stage. It is trite
that the application for amendment in written statement ought to be
liberally construed. However, the counter claim sought to be
introduced by way of amendment cannot be entertained once the issues
are framed and particularly, in respect of cause of action that arose
after tendering of the defence. A reference can be given to the
observation of Hon’ble Supreme Court in the case of Ashok Kumar
Kalra vs. Wing Cdr. Surendra Agnihotri & Ors.1.
7. A perusal of the proposed amendment indicate that Petitioner
wants to bring on record the events that occured during pendency of
suit particularly in relation to Inventory Proceedings No.
1 (2020) 2 SCC 394
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25th August 2026
18640/1970/II and C.M.A. No. 272/2021/II. All such facts are part of
the Court proceedings. If such facts are taken on record, that may
assist the Court to pass a comprehensive order without causing
prejudice to plaintiffs.
8. Learned Advocate appearing for the Petitioners, on instructions,
undertakes that the Petitioners would not lead further evidence in
pursuance to facts to be introduced by way of the proposed
amendment.
9. In this backdrop, this Court finds that insofar as proposed
amendment to incorporate the facts pertaining to Inventory
Proceedings No. 18640/1970/II and C.M.A. No. 272/2021/II as
stipulated in paragraph 2 of the application, the amendment can be
allowed subject to the condition that it will not entitle Petitioners to
record further evidence or any way halt the proceedings in the suit.
10. Insofar as the amendment to introduce counter claim is
concerned, this Court finds that when the suit has reached at the final
stage, counter claim cannot be permitted in light of the observation of
the Hon’ble Supreme Court in Ashok Kumar Kalra (supra).
11. In result, the Writ Petition is partly allowed.
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25th August 2026
12. The Petitioners’ application vide Exhibit 245, is partly allowed.
The impugned Order dated 25th November 2024 passed by learned Civil
Judge Senior Division at Margao, in Regular Civil Suit No. 578/2010/A
below Exhibit 245 is modified. The Petitioner/Defendant no. 10 is
permitted to amend the written statement to the extent of proposed
amendment as stipulated in paragraph No. 2 of the application.
However, amendment to the extent it seeks introduction of the counter
claim, stands rejected.
13. Needless to state here, that Petitioners shall be at liberty to
introduce the additional facts as stipulated in paragraph 2 of the
application without further right to record evidence and parties shall
proceed for final hearing after the plaintiff files his counter, if any,
against facts introduced in written statement by the amendment.
14. Writ Petition is disposed of.
S. G. CHAPALGAONKAR, J.
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25th August 2026
Signed by: ANDREZA PEREIRA
Designation: Senior Private Secretary
to the Hon'ble Judge
Date: 25/08/2026 14:25:49
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