Mr. K. Kannan J.: (Oral) - The petition for amendment to the written statement was filed in the year 2014 in a suit which was instituted in the year 2006. The suit was for specific performance of an agreement executed by a partnership in whose favour there had been allotment of property by HUDA. In the statement originally filed, the contention was that the agreement is not a valid agreement and one of the persons who was alleged to have signed was actually retired from partnership even in the year 1991. There had been a reference to the fact that in relation to the dealings with the plaintiff and the defendant, there had been registration of complaint in FIR No.727 dated 01.12.2006 imputing fraud as having been committed by the plaintiffs. It was also stated that the pre-requisite for the validity of the agreement viz; passing of consideration and free consent had not been fulfilled and the document had not been brought by free consent between parties.

2. The plaintiff would seek to contend that the impleadment of defendants Nos.3 and 5 was not necessary and it was bad for misjoinder of parties. It was further contended that HUDA itself was not a privy to the contract and therefore, an impleadment of HUDA as 5th defendant was also bad in law as one instituted against the person who was not a necessary party. The further contention was that the agreement itself was not true and the 2nd defendant had been taken in the car to unknown place and threatened for life and dire consequences and his signatures have been obtained on various blank papers and typed papers. The reference to a criminal complaint No.727/2006 was again reiterated but it was brought for the first time in the amendment that the consideration alleged to have been paid by making a deposit in favour of the partnership was not true. There were other contentions raised regarding the equitable and discretionary reliefs as being not available to the plaintiffs. The defendant had also sought to make a reference about the fact that the plaintiff’s wife had also obtained an agreement in her favour and the document was not gone through and the fresh agreement had been written. All these according to the defendants were clarificatory in nature and no prejudice could be caused if amendment is to be brought.

3. Learned counsel for the petitioners would refer to a large body of case laws and to our importance of what was read before me from the decisions of the Supreme Court would be the decision in Baldev Singh and others Vs. Manohar Singh and another, [2006(3) Law Herald (SC) 2324] : 2006(6) SCC 498 and yet another judgment in M/s Estralla Rubber Vs. Dass Estate (Pvt.) Ltd. 2001(8) SCC 97. The law relating to amendments came for a change by Act of 46/1998 and by Act of 22/2002. The attempt through the amendment was to bring a certain amount of discipline to be observed by parties who will not bring changes in pleadings at the end of the trial and stall the proceedings with prospect of stay orders from higher forums as well. The requirement as it now stands is that no application for amendment would be allowed after the trial has commenced, unless the Court would come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The test of the correctness of the order would be to see whether the impugned orders suffered from the vice of non-consideration of material issue of whether the plaintiff was in some way prevented from taking up a plea which he could not have done at any time when the original statement was filed.

4. I have already extracted some of the important features of the amendment. The first contention was that some of the defendants who had been impleaded as parties ought not to have been impleaded, for, they have retired from partnership and they are bad for misjoinder of parties. The objection regarding the non-joinder or the mis-joinder of the parties ought to be taken immedia