Karnataka High Court
Sri Jodhraj vs Mrs Maya M Shah on 11 March, 2013
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
W.P.No.24682/2012 (GM-CPC)
BETWEEN:
SRI JODHRAJ
S/O UDAYARAJ, 51 YEARS
NO.61, GOVINDAPPA ROAD
BASAVANAGUDI
BANGALORE - 560 004. ... PETITIONER
(BY SRI P D SURANA, ADVOCATE)
AND :
1. MRS MAYA M SHAH
W/O LATE MANOHAR SHAH, 61 YEARS
NO.2, LALBAGH HIGH ROAD
BANGALORE-27
2. MRS. MAMTA R. SHAH, MAJOR
R/AT NO.302, B-2
KOHINOOR ESTATE
OPP: MARIA GATE
MUMBAI PUNE ROAD, PUNE-3
REP BY HER GENERAL POWER
OF ATTORNEY HOLDER
MR. ANAND M. SHAHA, MAJOR
3. MR. ANAND M. SHAH, MAJOR
S/O LATE MANOHAR SHAH
2
4. MR. AMIT M. SHAH, MAJOR
S/O LATE MANOHAR SHAH
BOTH ARE R/AT NO.2
LALBAGH HIGH ROAD
BANGALORE -27. ... RESPONDENTS
(BY SRI ASHOK B PATIL, ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 25.05.2012 MADE IN O.S.NO.4760/2008 AT
ANNEXURE-E & ETC.
THIS PETITION COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is plaintiff (hereinafter referred to as 'plaintiff') and respondents are defendants (hereinafter referred to as 'defendants') before trial court.
2. The suit is filed for specific performance of registered agreement of sale dated 02.04.2007. The suit was instituted on 18.07.2008. The defendants entered appearance and filed written statement on 19.09.2008. The trial court framed issues on 29.05.2010. The affidavit in lieu of examination-in- chief of PW1 was filed on 02.09.2011 and further 3 examination-in-chief of PW1 was recorded before court on 02.09.2011. Thereafter, case was adjourned from time to time for cross-examination of PW1. On 01.03.2012, defendants filed the instant application for amendment of written statement. The plaintiff opposed the application. The learned trial Judge accepted the application in terms of the impugned order dated 25.05.2012. Therefore, plaintiff is before this court.
3. I have heard Sri P.D.Surana, learned counsel for plaintiff and Sri Ashok B.Patil, learned counsel for defendants.
4. In a decision reported in (2010) 1 SCC 217 (in the case of Celina Coelho Pereira (Ms) & others Vs. Ulhas Mahabaleshwar Kholkar & others), the Supreme Court has held:-
"30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta18, this Court held : (SCC p.865, para 7) 4 "7. ... The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
31. In State Vs. Navjot Sandhu19 this Court explained the power of the High Court under Article 227 thus : (SCC pp. 656-57, para 28) "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High 5 Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'."
32. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram20, State of Maharashtra v. Milind21 and Ranjeet Singh v. Ravi Prakash22, came to be considered by this Court in Shamshad Ahmad v. Tilak Raj Bajaj23 and this Court held : (Tilak Raj case23, SCC pp.10-11, para 38) 6 "38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."
5. In a decision reported in 2009 AIR SCW 4006 (in the case of Radhey Shyam & Another Vs. Chhabi Nath & Others), the Supreme Court has held:-
"29. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari.7
Article 227 vests the High Courts with the power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement."
6. In view of limited jurisdiction of this court under article 227 of the Constitution of India, following points would arise for determination:-
"1. Whether trial court has committed jurisdictional errors in accepting the application for amendment of written statement?
2. To what order?"8
7. In order to answer the above points, it is necessary to state the facts in brief;-
As already stated, suit for specific performance was filed in the year 2008. On 19.09.2008, defendants filed written statement, denying execution of registered agreement of sale dated 02.04.2007. The defendants also contended that instant plaintiff colluding with plaintiff in O.S.No.3416/2007 namely Sri Shashank Shah threatened and exercised duress and coercion and made defendant No.1, who is a widow and other children of Manohar Shah, to make it appear that there is a settlement between defendants and plaintiff and got up suit agreement and threatened defendants to knock away properties from defendants. The plaintiff in the instant suit is hand in glove with plaintiff in O.S.No.3416/2007. The defendants have not executed agreement of sale and they have not received cash of Rs.50,00,000/-.
The trial court framed issues on 29.05.2010. The affidavit in lieu of examination-in-chief of PW1 was filed on 9 02.09.2011 and further examination-in-chief of PW1 was recorded before court on 02.09.2011. Thereafter, case was adjourned from time to time for cross-examination of PW1.
8. The defendants filed the instant application for amendment of written statement on 01.03.2012. The instant application for amendment of written statement reads thus:-
SCHEDULE I. After para-2 insert para-2A 2A. The defendants submit that, the husband of the first defendant and the father of the defendants 2 to 4, Shri Manohar M.Shah, passed away on 14.01.2007 suddenly two days after his hospitalization. The family of the defendants was in distress having lost the head of the family and having incurred debts. The earning of defendant No.3 was not sufficient and defendant No.4 was not employed. In view of the death of the head of the family, the defendants were without any resources for liquidating their debts. In this situation they were advised to sell a portion of the schedule property, so that, the existing debts could be cleared. Therefore, an advertisement was caused by 10 them in a daily news paper, Deccan Herald dated 21.02.2007 through an agent by name Shri R.S.Jayaprakash.
II. Add para-2B after para 2A 2B. The defendants submit that, in response to the aforementioned advertisement, the plaintiff showed initiative to purchase the suit schedule property and the terms were incorporated in an Agreement to Sell dated 12.03.2007. In the said agreement the consideration shown was Rs.8,000/- Sq. Ft., which was much lower than the then prevailing rate in the market. The defendants had to compromise in their dire situation. The plaintiff had paid a token advance of Rs.10 lakh in cash on 04.03.2007. On 12.03.2007 the plaintiff paid a sum of Rs.2 Crore in cash and another sum of Rs.25 lakh by cheque No.039816 dated 12.03.2007 drawn on Canara Bank, Avenue Road Branch, Bangalore in the name of the first defendant. The original agreement signed by the plaintiff and the defendants is in the possession of the plaintiff. The defendants are in possession of a photocopy of the said agreement taken from a typed copy of the same. However, it bears the original signature of the plaintiff. 11 III. Add para-2C after para-2B 2C. In the aforementioned agreement dated 12.03.2007, it was stipulated that, the defendants are required to obtain the transfer of khata in their name and the plaintiff was required to pay a further sum of Rs.2 Crore as advance on or before 30.03.2007. Further, it was provided that, the Sale Deed would be registered within 6 months from 12.03.2007 or within 15 days of the defendants obtaining and furnishing documents to make out a marketable title like khata etc. However, the plaintiff took from the defendants the original of the Family Partition Document dated 20.07.1964 of the properties held by the family, amongst the grant parents of defendants 2 to 4, their father and their paternal aunts, in or about the last week of March, 2007, under pressure and at the instigation of one Shashank Shah. Further, the plaintiff also took about 20 original tax paid receipts issued by the Bangalore City Corporation.
IV. Add para-2D after para-2C 2D. The defendants submit that, in the third or fourth week of March, 2007 the plaintiff desired to put up a compound wall to demarcate the property 12 bearing Nos.3, 4, 5, 6 and 7 to the north of the suit properties and the suit properties. At that stage, the work was obstructed by one Shashank Shah, the son of the sister of the husband of the first defendant. At the stage, the plaintiff expressed his misgivings to go ahead with the transaction of the Agreement to Sell dated 12.03.2007. However, the plaintiff attempted to deal with the above said Shashank M.Shah, for the purchase of the suit schedule properties including property Nos.3, 4, 5, 6 and 7 on the northern side of the suit properties. The property Nos.3, 4, 5, 6 and 7, totally measure about 12,000 Sq. Ft.
V. Add para-2E after para-2D 2E. The defendants submit that, the plaintiff and the aforementioned Shashank Shah, put forth a proposal for the sale of the suit schedule properties and the property Nos.3, 4, 5, 6 and 7 for about total apparent sale consideration of Rs.18 Crore, which was totally unacceptable to the other family members. Further, the aforementioned Shashank Shah, claimed non existing right and interest in the suit schedule properties. Thus, the plaintiff and Shashank Shah attempted to undermine the 13 exclusive right, title and interest of the defendants in the suit schedule properties and give them a raw deal. The defendants and other family members could see through the scheme of the plaintiff and the above said Shashank Shah. As such, the defendants and other family members did not agree to the said transaction. In this situation, the plaintiff decided to cancel the transaction under the Agreement to Sell dated 12.03.2007.
VI. Add para-2F after 2E :
2F. As a consequence of the above development, the plaintiff demanded the refund of the amount paid by him. The defendants submit that, out of the cash of Rs.2.10 Crore, a sum of Rs.1.50 Crore was returned to the plaintiff in cash. Further, jewels worth more than Rs.7.3 Lakh were given in lieu of cash. The cheque for Rs.25 Lakh dated 12.03.2007 given by the plaintiff was also returned. As such, a sum of Rs.1,82,30,000/- was paid back to the plaintiff by the defendants. The defendants could not repay the balance amount of Rs.52,70,000/- since they had utilized the said amount for repaying their pressing debts. However, the repay the said amount, the defendants sought some time.14
However, the plaintiff was impatient and insisted upon a document to secure the said amount of Rs.52,70,000/- and threatened the defendants to execute the suit Agreement on 02.04.2007 and get it registered the same day.
VII. Add para-2G after para-2F :
2G. The defendants submit that, they were pressurized by the plaintiff to execute and register the suit agreement on 02.04.2007. It is submitted that, the second defendant who is a resident of Pune, was asked to come over to Bangalore to execute a power of attorney in favour of the third defendant, which was prepared by Mr.Madan Gopal, the advocate of the plaintiff. Further, the suit agreement was also prepared by him. The plaintiff did not even allow the defendants to get the draft of the suit agreement shown to their lawyer before executing the same. Thus, the suit agreement was executed as security for the balance amount of Rs.52,70,000/-. However, in the suit Agreement, the plaintiff has shown that, he paid Rs.50 Lakh in cash on 02.04.2007, which is patently false. It is submitted that, no sane person will agree to sell the valuable property at the rate of 15 Rs.2,500/- Sq. Ft. three weeks after agreeing to sell the very same property at the rate of Rs.8,000/- Sq. Ft. The defendants submit that, the present market value of the schedule property is more than Rs.16,000/- Sq. Ft.
VIII. Add para-2H after para-2G :
2H. The defendants submit that, after the suit agreement dated 02.04.2007 was executed and registered, the first defendant wrote a letter dated 20.04.2007 to the plaintiff sent by RPAD and UCP.
In the said letter, the first defendant narrated the entire facts leading to the execution of the suit agreement dated 02.04.2007 and the conduct of the plaintiff in pressurizing and threatening the defendants. Further, the disparity between the terms of the agreement dated 12.03.2007 and the agreement dated 02.04.2007 were also pointed out to show that, the plaintiff committed fraud on the defendants. The plaintiff had received the said letter and he has not replied to the same. Further, the plaintiff has suppressed the above facts in the plaint with a malafide intention. However, in para 19 of the plaint, the plaintiff has admitted the receipt of the letters from the first defendant, but 16 he has deliberately not stated the date and the contents of the said letters.
IX. Add para 2I after para 2-H :
2I. The defendants submit that, the above suit is deceitful and fraudulent. The plaintiff is a real estate dealer and developer apart form being in other trade and business. The plaintiff had deliberately filed the suit by engaging the counsel other than Mr.Madan Gopal, who had drafted the Power of Attorney of the 2nd defendant and the suit Agreement dated 02.04.2007. In view of all the above facts, the defendants submit that, the plaintiff is not entitled to the discretionary relief of specific performance of the alleged Agreement dated 02.04.2007."
9. The learned counsel for plaintiff submits that trial has commenced. Therefore, trial court should not have accepted the application for amendment of written statement, without being satisfied that defendants in spite of exercise of due diligence could not raise this plea before commencement of trial.17
The defendants have sought to amend the written statement to introduce a new case, which is not permissible under Order VI Rule 17 CPC. The learned trial Judge has committed jurisdictional error. The learned trial Judge, without recording a finding that defendants in spite of exercise of due diligence could not raise this plea before commencement of trial has accepted the application for amendment of written statement. Therefore, the impugned order calls for interference under article 227 of the Constitution of India.
10. The learned counsel for defendants has made following submissions:-
The defendants had instructed their previous counsel M.Ramakrishnappa to file written statement by incorporating facts, which are now sought to be introduced by amendment. The defendants were under bonafide impression that their advocate had incorporated these facts.
After the case was set down for cross-examination of PW1, learned counsel for defendants was repeatedly taking 18 adjournments. The learned counsel for defendants had failed to incorporate the instructions of defendants at the time of filing written statement. Further, learned counsel for defendants was persuading defendants to settle the matter with plaintiff. The defendants were apprehensive of the whole matter, since trial court may not grant adjournment again and again. Therefore, defendants requested their previous counsel to return file with 'no objection' to engage any other counsel. As such, learned counsel gave 'no objection' and returned the file on 26.02.2012. The file was examined by present counsel for defendants. The defendants were shocked to learn that antecedent facts relating to agreement of sale dated 12.03.2007, entered into between plaintiff and defendants in respect of suit schedule properties were not stated in the written statement. Further, there was no reference of registered letter addressed by I-defendant to plaintiff on 20.04.2007 with regard to sequence of events which led plaintiff to force defendants to execute alleged suit agreement dated 02.04.2007, grossly under quoting value of 19 property. Further, in the said letter, fraudulent scheme of plaintiff and his collusion with one Shashank Shah was also stated. The copy of said letter was also made available to previous counsel for defendants. In view of this, defendants are constrained to file application for amendment of written statement to introduce paragraphs 2A to 2I after paragraph 2 of original written statement.
11. The law is fairly well settled that defendants can take inconsistent stands in the written statement. The law is fairly well settled that court while considering written statement need not verify truth or otherwise of proposed amendment.
12. The defendants have denied execution of agreement of sale dated 02.04.2007. The defendants have also pleaded fraud, coercion and undue influence would vitiate alleged agreement of sale. Whether proposed amendment is amplification of averments made in written statement or not is not relevant for consideration of merits of the application, 20 but question remains whether defendants have established that in spite of due diligence, defendants could not raise this plea before commencement of trial.
13. In a decision reported in AIR 2009 SC 1433 (in the case of Vidyabai & Others Vs. Padmalatha & Another), the Supreme Court has held:-
"14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
(Underlining supplied by me) 21
14. In a decision reported in (2012) 2 SCC 300 (in the case of J.Samuel and Others Vs. Gattu Mahesh and Others), the supreme court has held:-
"18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that:
" ... no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite 22 of due diligence, the party could not have raised the matter before the commencement of trial."
(emphasis supplied)
19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial."
15. The proviso to Order VI Rule 17 CPC is mandatory in nature. This is a jurisdictional aspect. The court will not have jurisdiction to consider the application under Order VI Rule 17 CPC, unless the court is satisfied that party in spite of exercise of due diligence could not raise this plea before commencement of trial.
23
16. In the case on hand, defendant No.3 has filed an affidavit in support of application for amendment, inter alia contending that after the case was set down for cross-examination of PW1, learned counsel for defendants has repeatedly taken adjournments. The relevant averments relating to exercise of due diligence are stated thus:-
"3. I state that, after the case was set down for the cross examination of PW-1, our counsel has repeatedly taken adjournments, though we had given him full instructions and all the relevant documents at the time of filing the written statement. Further, our counsel was persuading us to settle the matter with the plaintiff. We were apprehensive of the whole matter, since the Hon'ble court may not grant adjournment again and again. Therefore, we had to request our counsel to return the file with 'no objection' to engage any other counsel. As such, the learned counsel gave the 'no objection' and the file on 26.02.2012.24
4. I state that, the file was examined by our present counsel. We were shocked to learn that, the antecedent facts regarding the Agreement to Sell dated 12.03.2007 between the plaintiff and us in respect of the suit schedule properties was not stated in the written statement. Further, there was no reference of the registered letter of our mother, the first defendant to the plaintiff dated 20.04.2007, with regard to the sequence of events which led to the plaintiff forcing us to execute the alleged suit Agreement dated 02.04.2007, grossly under quoting the value of the property. Further, in the said letter the fraudulent scheme of the plaintiff and his collusion with one Shashank Shah was also stated. The copy of the said letter was also made available to our previous counsel.
5. In view of the above, now we are constrained to file the accompanying application for amendment of the written statement by inserting paras 2A to 2I after para 2 of the existing written statement.
6. I state that, the proposed amendment is just and the same are necessary for the purpose 25 of determining the real questions in controversy between the plaintiff and us.
7. I state that, we as innocent defendants reposed absolute confidence in our previous counsel and made available to him all the relevant records at the time of preparation of the written statement, more particularly, the agreement to sell dated 12.03.2007, which contained the sale consideration at the rate of Rs.8,000/- per sq. ft., in contrast to the alleged sale consideration shown in the suit Agreement dated 02.04.2007 as Rs.2,500/- per Sq. Ft. Further, the registered letter of the first defendant dated 20.04.2007 to the plaintiff was also made available to our previous learned counsel. Unfortunately, despite our due diligence, the written statement did not contain the averments with regard to the aforementioned documents, which are now sought to be added by way of amendment to the written statement.
8. I state that, our previous counsel had prepared a memo dated 29.09.2011 to produce the document of Agreement to Sell dated 12.03.2007. However, the same was not filed in the court since then. Even if it was filed, it would 26 have been futile since there was no pleading with regard to the said document in the written statement. The above said memo dated 29.09.2011 in original signed by our previous counsel along with a copy of the Agreement to Sell dated 12.03.2007 signed by the plaintiff is produced herewith. Further, a copy of the registered letter of the first defendant to the plaintiff dated 20.04.2007 and the copy of the postal acknowledgment are also produced herewith."
17. The learned counsel for defendants relying on a decision of the Supreme Court, reported in (2008) 5 SCC 117 (in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand), would submit that averments of affidavit would establish that defendants had exercised due diligence as expected of a prudent man and they could not plead these facts in the original written statement, due to lapse on the part of their previous counsel. Therefore, trial court has rightly accepted the application for amendment of written statement. This court in exercise of jurisdiction under article 27 227 of the Constitution of India cannot interfere with the findings recorded by trial court.
18. In order to appreciate this submission, it is necessary to refer to affidavit filed by defendant No.3.
19. In the affidavit, it is not stated that defendants had exercised due diligence or made efforts to verify their pleadings before commencement of trial. It is only after the case was set down for cross-examination of PW1 and learned counsel for defendants was repeatedly taking adjournments and persuading defendants to settle the matter, defendants requested their previous counsel to return the file along with 'no-objection' to engage a new counsel. It is specifically stated that learned counsel for defendants had given 'no- objection' and file was returned on 26.02.2012. Thereafter, file was examined by present counsel. The defendants were shocked to learn that antecedent facts regarding agreement of sale dated 12.03.2007, entered into between plaintiff and defendants in respect of suit schedule properties were not 28 stated in the written statement. Thus, it is apparent on the face of record that defendants exercised so called due diligence after 26.02.2012, whereas trial had commenced on 02.09.2011.
20. In a decision reported in (2009)2 SCC 409 (in the case of Vidyabai & Others Vs. Padmalatha & Another), the Supreme Court has held:-
"11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to "commencement of proceeding".29
In the circumstances, it is hardly possible to hold that defendants had exercised due diligence before commencement of trial and in spite of such exercise of due diligence, they could not raise these pleas in written statement.
21. The learned counsel for defendants has referred to paragraph 7 of the affidavit of defendant no.3 to submit that in spite of exercise of due diligence by defendants the written statement did not contain the averments which are now sought to be added by way of amendment.
This submission cannot be accepted for more than one reason. The defendants who have filed the written statement cannot be permitted to feign ignorance of the contents of written statement. Even otherwise, the defendants have not pleaded that before commencement of trial on 02.09.2011, they had exercised due diligence to notice the lacuna in their written statement.
30
22. The learned counsel for defendants would submit that previous counsel had prepared a memo dated 29.09.2011 to produce document relating to agreement of sale dated 12.03.2007, however the same was not filed in court.
23. At the risk of repetition, it has become necessary to state that the trial commenced on 02.09.2011. The due diligence said to have been exercised by the defendants after 26.02.2012 cannot be termed as due diligence exercised before the commencement of trial.
24. The learned trial Judge without consideration of jurisdictional aspect has accepted the application for amendment of written statement. Therefore, order passed by learned trial Judge is without jurisdiction. The impugned order cannot be sustained. 31
25. In the result, I pass the following:-
ORDER The writ petition is accepted. The impugned order is set aside.
Sd/-
JUDGE SNN