TaxTMI 
TaxTMI 
2015 (8) TMI 1407
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....respondent which is a Private Ltd. Company was having a Diploma of Concession bearing No.51 of 22 September 1958 for mining situated at villages Gavanem and Ambelim of Sattari Taluka admeasuring 100 hectares. By virtue of the Goa, Daman and Diu Mining Concession (Abolition and Declaration of the Mining Leases) Act 1987, the concession in favour of the third respondent was deemed to be a lease. The third respondent had applied on 14/11/1988 to the Government of Goa for renewal of the said mining lease, which application was rejected by the order dated 20/10/1989. 5. Sometime in the month of October 2007, the representative of the third respondent noticed that the petitioner was carrying out illegal excavation in the said property. Further according to the third respondent it was reliably learnt that the petitioner had acquired surface rights in respect of survey no.7 and a total quantity amounting to 10,000 tonnes of iron ore of low grade was excavated by the petitioner from survey no.7. In such circumstances, the suit came to be filed for permanent injunction, restraining the petitioner or anybody on his behalf from carrying on any mining activity or extracting any ore, in the pro....
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....ce of whatsoever would be caused to the petitioner. In the face of such finding the application came to be allowed. Feeling aggrieved the petitioner is before this Court. 10. I have heard Mr. Thali, the learned counsel appearing for the petitioner, Mr. Prabhudessai, the learned Additional Government Advocate appearing for respondent no.1 and Mr. Lotlikar, the learned Senior Counsel appearing for the third respondent and With the assistance of the learned counsel for the parties, I have perused the record. 11. At the outset, it is submitted by Mr. Thali, the learned counsel appearing for the petitioner that the amendment except, as proposed in paras 14(B) and the prayer clause (bb) is not opposed. In other words, Shri Thali has confined his challenge only to the amendment, as proposed in para 14(B) and prayer clause (bb). It is submitted that by addition of para 14(B) and the consequent prayer clause (bb), for the first time, a claim in the nature of compensation/damages to the tune of Rs. 4 crores is sought to be introduced, which would be otherwise time barred. It is submitted that thus the amendment could not have been allowed. It is next submitted that the third respondent did....
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.... removed the restrain placed on the petitioner was recalled and the said restraint was restored. It is submitted that in the meantime, the petitioner managed to remove the iron ore which was already extracted. The learned Senior Counsel submitted that although the application for amendment does not set out the details, the amendment is necessitated on account of the fact that the ore which was already extracted was removed after filing of the suit. He, therefore, submits that the amendment is necessitated on account of subsequent developments on the filing of the suit. The learned Senior Counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of Pankaja and another Vs. Yellappa (dead) by Lrs. and others, reported in (2004) 6 SCC 415. 14. He submitted that the learned District Judge has rightly come to the conclusion that the amendment was necessary for deciding the real controversy in dispute and as such, has rightly been allowed. 15. Mr. Prabhudessai, the learned Additional Government Advocate for the respondents no.1 and 2 had nothing much to say in the matter, as the dispute is essentially between the private parties. 16. I have considered the....
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....ly those on which the relief is based. The third respondent has claimed that the value of iron ore illegally extracted would be to the tune of 4 crores and the petitioner (defendant no.3) would be liable to compensate the same. By introduction of prayer clause (bb), the third respondent is seeking a decree for Rs. 4 crores, by way of damages. It is thus clear that the proposed amendment, does not derogate from the case made out in the plaint and to a certain extent even the amendment as proposed in para 14(B) would relate to subsequent developments, namely, the allegation about the removal of iron ore which was already extracted. In that view of the matter, no exception can be taken to the finding recorded by the learned District Judge that the proposed amendment would be necessary to decide the real controversy between the parties in the suit. The learned District Judge as noticed earlier has also found that the amendment would be necessary in order to avoid multiplicity, which is the very object of Rule 2 Order 2 of C.P.C. 19. In so far as the proposed amendment seeking to introduce a claim which is barred by time, the learned District Judge has found and to my mind rightly so t....
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....mendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 24. Thus, the normal rule would be that the Court may at any stage of the proceeding may allow either party to alter or amend his pleadings,when such amendments may be necessary for the purpose of determining the real question in controversy between the parties. Thus the proviso can come into play only, when the Court comes to the conclusion that the party has not approached the Court with due diligence. The proviso would not come in the way of grant of amendment when the Court finds that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso in fact aims at balancing the conflicting considerations for expeditious disposal of the suit on one hand and a genuine need of a party to effect amendments. 25. Coming back to the present case, the proposed ame....