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 1½ 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.

4. During the pendency of the suit, an order of injunction was passed, restraining the defendants from creating any third party interest over the suit property. On 14.03.2005, defendant nos. 5 and 6 filed their written statement at Exh.45, through their counsel Shir Ulhas Ambadas Dhabe and the issues were framed on 15.01.2008. The plaintiff no.2 entered the witness-box on 28.08.2008. His cross was completed on 01.10.2008. He examined two more witnesses and their cross was also completed on the same day. The plaintiffs filed pursis dated 01.10.2008 closing their side of evidence. Defendant Nos.1 to 4 filed their affidavit in lieu of examination in chief on 23.10.2008 and cross examination was held on 27.11.2008. Defendant No.5 filed his affidavit in lieu of examination in chief on 02.05.2009 (Exh. 142).

5. At this stage, a joint Vakalatnama was filed for the defendant Nos.5 and 6 by two counsels, one Shri Ulhas Ambadas Dhabe (who was already defending them) and another Shri Shrikant Badge, at Exh. 144. On 18.07.2009, an application at Ex. 148 was filed by Shri Shrikant Badge, Advocate, for seeking permission to file fresh affidavit. The matter was thereafter adjourned on 32 occasions and on 16.03.2011, the court granted permission to file fresh affidavit. Instead of filing fresh affidavit, an application for amendment at Exh. 154 came to be filed by defendant nos.5 and 6 on 11.04.2011 through counsel Shri Shrikant Badge. It was opposed by filing reply by the plaintiffs. Shri Shrikant Badge, counsel for respondent no.5 thereafter filed pursis on 03.05.2012, reporting “no instructions from his client”. On 18.01.2013, the court passed an order impugned in this petition, allowing application for amendment.

6. Shri Kalbande, the learned counsel appearing for the petitioners has urged that no case of due diligence has been made out. The mistake on the part of the counsel to take certain points in defence cannot be a ground to allow the application for amendm