The court's decision emphasized the discretionary nature of the impugned order and the absence of any miscarriage of justice.

1. By this petition, the petitioner has challenged the order passed on 9/12/2013, rejecting the application of the petitioners/defendants to amend the pleadings in the written statement filed by him in Regular Civil Suit No.8/2010, which is presently pending before the Court of Civil Judge, Junior Division at Canacona.

2. I have heard Shri Nitin Sardessai, learned Counsel for the petitioners and Shri S.S. Kantak, learned Senior Counsel for the respondents.

3. Rule returnable forthwith. Heard finally by consent.

4. The main ground of contest as canvassed by the learned Counsel for the petitioners is that the test of due diligence has to be applied with reference to the capacity and understanding of the party of the law which cannot be compared with the understanding of law of a lawyer. He submits that it was all throughout the case of the petitioners that the copy of the mortgage deed, inspite due diligence on their part, could not be obtained earlier and, therefore, they were not aware exactly of the terms and conditions of the mortgage. He submits that later on when petitioner no.1 could obtain a copy of the same, the petitioners could know the terms and conditions of the mortgage which revealed that the Bank was a necessary party as certain duties and responsibilities were cast upon the mortgagers under the mortgaged deed, one of which related to preservation of the mortgaged property. Therefore, he further submits that petitioners made an application for amendment of the pleadings which was rejected by the Trial Court in an illegal manner.

5. The other contention raised on behalf of the petitioners is that in this case there was no issue of limitation involved at this stage of the case as against the Bank as a defendant party and, in any case, it would have been appropriately dealt with in terms of the provisions of Section 21 of the Limitation Act. He thus submits that in such circumstances, the Bank was the necessary party and in the absence of the Bank, the suit could not have been allowed to proceed.

6. Shri S.S. Kantak, learned Senior Counsel for the respondents vehemently opposing the said application submits that in the written statement itself the petitioners have made a specific reference to the existence of the mortgage between the Bank, on one hand and, therefore, petitioners cannot say that they were not aware of the terms and conditions of the mortgage and could not have incorporated the necessary pleas in that regard in the written statement. He also submits that petitioners have approached this Court under Article 227 of the Constitution of India, and jurisdiction of this Court under Article 227 is equitable in nature and since the petitioners have not approached this Court with clean hands, on this count itself, the petition deserves to be dismissed.

7. Learned Senior Counsel has further submitted that the loan was obtained by the petitioners from the Co-operative Bank, way back in the year 1986 and even though the respondents had no concern whatsoever with the loan obtained by the petitioners, the respondents as good samaratarians mortgaged their property to the Bank to secure loan taken by the petitioners. He further submits that if there are any conditions in the mortgaged deed casting some obligations upon the mortgager and the principal borrower, a question about performance of the obligations would and should arise only after it becomes clear as to whether or not the loan so obtained by the petitioners has been repaid by them so far. He submits that petitioners must come clean in this regard and must disclose to the Court about the present position of the loan. He also submits that unless the petitioners disclose the present status of the loan account, the pleadings sought to be newly added by the petitioners cannot be appropriately considered and allowed to be incorporated in his written statement or otherwise.

8. The impugned order, one must say, is discretionary in nature and in exercising t