ORDER :

U. Durga Prasad Rao, J.

1. The challenge in this C.R.P. at the instance of petitioners/plaintiffs is to the order dated 20.2.2019 in IA No. 212 of 2018 in OS No. 95 of 2010 where under learned Junior Civil Judge, Mummidivaram allowed the petition filed by the defendant under Order VI Rule 17 of C.P.C., seeking to amend the written statement.

2. The plaintiffs filed OS No. 95 of 2010 seeking declaration of the title and recovery of possession of the plaint schedule agricultural land on the pleas that 1st plaintiff purchased the suit land under sale deed dated 28.8.1975; plaintiffs 2 and 3 are her maternal grandsons and she executed a Regd. Gift Settlement Deed dated 16.6.2007 in their favour in respect of plaint schedule property reserving life interest for herself; the defendant is a close relative of 1st plaintiff and as the suit land is nearer to the village of the defendant and father to plaintiffs, 1st plaintiff entrusted the management of suit land in the year 2005 to the defendant to cultivate and render accounts, but from the year 2007 onwards the defendant was not rendering accounts, and there was no proper response from him despite issuance of the notice. Hence, the suit.

(a) The defendant filed written statement opposing the plaint averments. He inter alia contends that suit schedule property was sold to him by 1st plaintiff and her husband Nageswara Rao under a possessory agreement of sale dated 8.7.2004 and he has been in peaceful possession and enjoyment of the suit land and they are avoiding the execution of registered sale deed.

(b) While so, the trial went on and when the matter was posted for defendant's evidence, he filled IA No. 212 of 2018 under Order VI Rule 17 of C.P.C., seeking to amend the written statement. His case is that agreement to sell was executed by 1st plaintiff and her husband not in the name of the defendant but in the name of his wife Eswari and the date of agreement to sell was 17.6.2003 but not 8.7.2004. In his affidavit, he would submit that at the time of filing of written statement, since the possessory agreement to sell dated 17.6.2003 and original sale deed dated 28.8.1975 which was in favour of the first plaintiff were misplaced, he could not furnish the correct date of execution of possessory agreement and the correct name of the purchaser. It was purely a mistake but not intentional. Since the original sale deed and possessory agreement to sell were recovered before filing the amendment petition, the said petition was filed to seek necessary amendments.

(c) The plaintiff opposed the said petition by filing counter.

(d) The Trial Court, it appears, under the impression that there was no much change in the pleadings since the defendant earlier claimed agreement to sell in his favour with a specific date and now claims the agreement to sell in favour of his wife with a different date and in any event, since the plaintiffs denied execution of agreement to sell, whether or not the 1st plaintiff and her husband executed sale agreement in favour of the wife of defendant can be decided only if such a plea is allowed to be taken and accordingly allowed the amendment petition.

Hence, the C.R.P.

3. Heard learned Counsel for petitioners Sri Marri Venkata Ramana and learned Counsel for respondent Sri T.V.S. Prabhakara Rao.

4. Parties in the C.R.P. are referred as they are arrayed before the Trial Court.

5. Severely fulminating the order impugned, the Counsel for petitioner would argue that as per proviso to Order VI Rule 17 of C.P.C., amendment to the pleadings after commencement of trial is not for mere asking but the seeker of the amendment should convince the Court that inspite of due diligence, he could not have raised the matter before the commencement of trial. Referring the aforesaid provision he would strenuously argue that in the instant case, the defendant at first came up with a plea as if the 1st plaintiff and her husband had executed a possessory agreement of sell on 8.7.2004 in his