14744-2024-WP=.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 14744 OF 2024 1. Usha Patil Ashok Takmoge 2. Kunal Pita Ashok Takmoge 3. Dilip Pita Ashok Takmoge … Petitioners Vs. Devraj Pita Anil Chavan … Respondent …………. Mr. Anand Kulkarni for the Petitioners Mr. Prasad B. Kulkarni for the Respondent …………. CORAM : SHAILESH P. BRAHME, J. DATE : 8th SEPTEMBER, 2026. FINAL ORDER : . Heard both sides finally. 2. The petitioners take exception to the order dated 18.01.2024 passed below Exh.17 in Special Civil Suit No. 75 of 2021 thereby allowing the respondent – plaintiff to amend the plaint. The petitioners are the original defendants in the suit instituted by the respondent for specific performance of contract. 3. The respondent submitted Application Exh.17 after settlement of issues to incorporate paragraph nos. 4A, 4B in the plaint. It was allowed by the impugned order. Hence, the petitioners have preferred this Uday S. Jagtap 1 of 4 UDAY SHIVAJI JAGTAP Digitally signed by UDAY SHIVAJI JAGTAP Date: 2026.09.10 17:51:45 +0530 14744-2024-WP=.doc petition. 4. Learned Counsel Mr. Kulkarni, appearing for the petitioners submits that the respondent has taken inconsistent stand by incorporating the pleadings. The nature of the proceedings are going to change. It is submitted that suit for specific performance of contract is founded on oral agreement, which stand is reiterated in the subsequent application preferred by the respondent before the trial Court. In order to overcome the lacuna, a total contrary theory has been set out in the proposed amendment. It is submitted that the petitioners will be deprived of valid defence due to the impugned order. The explanation stated in Application Exh.17 failed to satisfy test of due diligence. It is contended that impugned order suffers from error of jurisdiction and perversity. 5. Per contra, learned counsel for the respondent would submit that trial Court has taken a reasonable view relying upon the judgment of the Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. & Anr. (2022) SCC Online SC 1128. It is submitted that the nature of suit is not going to change. It is further submitted that petitioners will also get an opportunity to counter the pleadings. The trial Court is justified in adopting liberal approach which Uday S. Jagtap 2 of 4 14744-2024-WP=.doc is necessary to decide the real controversy between the parties. 6. Admittedly, Application Exh.17 was submitted by the respondent for amendment to plaint after settlement of issues. The plaint is founded on oral transaction between the parties which took place in the year 2013. By way of proposed amendment, respondent wanted to incorporate paragraph nos. 4A and 4B which refer to written correspondence between the parties that took place on 26.07.2013. Further transaction occurred on 12.12.2018 and 31.01.2019 are also tried to be brought on record. 7. I find that the proposed pleadings and the original pleadings are inconsistent. The reason given for seeking leave to amend the plaint is the loss of papers at the time of filing of the suit. It is not made clear as to when those papers are discovered. The respondent could have pleaded that there was written correspondence or agreement between the parties regarding alienation of the suit property. The reason given in the Application Exh.17 is unacceptable. I find that the respondent has failed to satisfy the test of due diligence. 8. My attention is adverted to applications made by respondent for fixing the rent. In paragraph no.5, it has been stated that no written agreement was ever executed between the parties due to relationship. Uday S. Jagtap 3 of 4 14744-2024-WP=.doc The same stand is reiterated in paragraph no.6 of the application preferred under Section 29. Thus, it is evident that the consistent case of the respondents is that of oral agreement which is sought to be deviated by the proposed amendment. The trial Court has not taken into account this aspect of the matter. 9. Learned counsel for the respondents has relied upon the principles laid down by the Supreme Court in LIC of India (supra). This Court is bound by those principles. Due to the proposed amendment, the petitioners are likely to lose a valid defence. I find that the impugned order is unsustainable. 10. The Writ Petition is allowed. The impugned order dated 18.01.2024 is quashed and set aside. Application Exh.17 shall stand rejected. ( SHAILESH P. BRAHME, J. ) Uday S. Jagtap 4 of 4