The main legal point established in the judgment is that for an amendment of pleadings to be allowed, it must be necessary for deciding the real controversy between the parties and the party applying for the amendment must demonstrate due diligence in raising the matter earlier, especially if the application is filed after the commencement of the trial.

JUDGMENT

C. V. Bhadang, J -Rule, made returnable forthwith. The learned counsel for the respondent waives service. This is second round of litigation between the parties before this Court, on the point of amendment of the written statement.

2. The respondent/plaintiff has filed Special Civil Suit No.19/2011/A against the petitioners which is pending before the learned Senior Civil Judge at Mapusa. The case made out by the respondent is that he has made huge investment to the tune of Rs.1, 24, 66, 300/- for the construction of a project known as "Tangerine Dream" situated in survey no.121/6 of village Arpora, Bardez, Goa. That the said amount was paid towards the construction of Flat Nos. A-201, B-302, C-101, C-201, C-202, C-301, C-302, Shops/Office areas including, other constructed areas such as stilt, terrace as set out in Annexure II to the plaint (referred to as the ''suit constructed premises'', in the plaint). This according to the respondent is excluding the amount of Rs.1, 00, 08, 000/- paid by the respondent towards Flat Nos. A-202, A-301, A-302, B-101, B201, B-202 and B-301.

3. It is contended that the petitioner no.1 avoided to transfer the title and possession of the "suit constructed premises" or to refund the amount of Rs.1, 24, 66, 300/- along with interest and has cheated the respondent. It is in these circumstances that the aforesaid suit is filed for recovery of a sum of Rs.6, 06, 74, 285/- along with interest from the petitioners.

4. The petitioners filed their written statement on 22/11/2011 and have resisted the suit on various grounds including the ground of limitation. It is contended that the aforesaid amount has already been adjusted as per the agreement dated 17/11/2006 between the parties. It was denied that the amount of Rs.1, 24, 66, 300/- was paid towards the "suit constructed premises" . It is contended that a major part of the said amount i.e. Rs.1, 14, 91, 300/- was adjusted towards furniture, fixtures, amenities etc. and the remaining amount is towards the balance of expenses/consideration.

5. On the basis of the rival pleadings, the learned trial court framed the following issues on 28/11/2012:

(i) Whether the plaintiff is entitled to recover from the defendant no.1 a sum of Rs.6, 06, 74, 285/- as on 31/3/2011 with interest at 8% p.a. till its realization?

(ii) Whether the suit is barred by limitation?

(iii) Whether the defendants prove that defendant no.2 is not necessary of property to the suit?

(iv) What relief? What order?

6. On 12/1/2016, the respondent filed an application for amendment of the plaint seeking introduction of para 12-A which was allowed by the trial court by order dated 30/8/2016.

7. It appears that pursuant to the said amendment, the petitioners filed "additional written statement" to the amended plaint on 23/2/2017 along with an application for condonation of delay, as the additional written statement was filed beyond the period of 90 days. The learned trial court by an order dated 20/4/2017 rejected the said application, against which the petitioner had filed Writ Petition no.513/2017. This Court by a judgment and order dated 3/10/2017 had partly allowed the petition permitting amendment of the written statement to the extent of incorporation of para 11A and part of para 11-B being of a consequential nature to the amendment to the plaint. In the said judgment and order this Court had observed that under the garb of a consequential amendment, the defendant cannot be allowed to bring some new facts/pleadings on record which would essentially be governed by the prayer for amendment under Order VI Rule 17 of C.P.C.

8. It further appears that the respondent filed an application (Exhibit D31) seeking framing of certain additional issues while a similar application (Exhibit D-34) was filed by the petitioners for framing of the following issues:

(a) Whether the plaintiff proves that he was not in India on 17/11/2006 in order to sign the alleged said agreement dated 17/11/2006 r