JAYASHREE SUBHASH KALBANDE Vs. BHAURAO NAGORAO DERKAR

JUDGEMENT

(1.) Rule made returnable forthwith. Heard the matter finally by consent of the learned counsels appearing for the parties.

(2.) The challenge in this petition is to the order dated 18.01.2013 passed by the learned Civil Judge, Junior Division, Hingna, allowing the application Exh. 154 for amendment of written statement filed by the original defendant nos. 5 and 6 in Regular Civil Suit No. 86/2012. The trial court has recorded the finding that the application for amendment has been moved after affidavit in lieu of examination in chief was filed by the respondent no.5 on 02.05.2009. On the question of due diligence, it has been held that defendant nos. 5 and 6 are blaming their earlier advocate for not making sufficient and elaborate pleadings and there is a dispute going on between defendant Nos. 5 and 6 and their counsel. It has been held that due to the mistake of counsel, the parties cannot be made to suffer or denied the fair trial of the suit by putting forth their defence. It has been held that the amendment proposed is not a new and it is just explanatory of the original pleadings and clarifies the facts appearing on the record from the documents. It has also been held that the amendment proposed is necessary for deciding the real controversy involved in the suit.

(3.) The suit is for specific performance of contract dated 02.03.2003, filed by the petitioners, who are the original plaintiffs, alleging that the defendant nos.1 to 4 have agreed to sell the property to them for total consideration of Rs. 4,50,000/ and an amount of Rs. 1,08,300/ was paid upto 02.07.2004. The sale deed was to be executed in the year 2005 i.e., after about 1 years from the date of execution of the contract. However, on 02.07.2004, the defendant nos. 1 to 4 have executed a sale deed in favour of defendant no. 5 for total consideration of Rs. 1,60,000/ . The plaintiffs issued notices to all the defendant nos. 1 to 6 on 28.07.2004 and after receipt of their reply on 17.08.2004, the suit was filed on 24.01.2005.