1. The present petition under Article 227 of the Constitution of India has been preferred by the petitioners/defendants against the order dated 19.1.2012 passed by trial Court; whereby, the application preferred by the petitioners as defendants under section 151 CPC (Annexure P-7) has been rejected.

2. Precisely stated facts of the case are that respondents No. 1 and 2/plaintiffs instituted a suit for specific performance of an agreement to sale dated 13.3.2009 against the petitioners / defendants No. 1 to 4 on the allegations that petitioners have executed an agreement to sale in favour of plaintiffs with respect to agricultural land owned by defendants for a consideration of Rs. 1,62,00,000/- and plaintiffs have made payment of advance amount of Rs. 24 lacs in cash and through cheques. The plaintiffs extended their readiness and willingness to get the sale deed executed after performing their part of contract but defendants are not performing their part of contract and have entered into fresh contract with other persons.

3. The present petitioners appeared in the suit as defendants and filed written statement and rebutted the claims made by the plaintiffs.

4. It appears that during the pendency of the suit, an application under Order I rule 10 (2) read with section 151 of CPC was preferred by plaintiff No. 1 Bhav Singh Rajpoot to delete the name of plaintiff No. 2 -Dr. Manoj Singh Somvanshi from the array of plaintiffs because the plaintiff No. 2 executed a relinquishment deed dated 6.5.2010 in favour of plaintiff No. 1. Said aspect was considered by the trial Court and vide order dated 19.4.2011 (Annexure P-6) rejected the contentions of the plaintiff No. 1 and application so preferred. Resultantly, the plaintiff No. 2 remained in the fray as plaintiff No. 2.

5. When the matter placed for evidence then affidavit under Order XVIII rule 4 CPC was preferred by plaintiff No. 1 in which the factum of relinquishment deed has again been preferred and it has been referred in para 11 of the affidavit that plaintiff No. 2 has executed a relinquishment deed in favour of plaintiff No. 1 and other related pleadings. The said pleadings appeared to be objectionable to the petitioners as according to them, once the controversy has been decided by trial Court by passing order dated 19.4.2011 (Annexure P-6), at an earlier point of them, then the said pleadings could not have been incorporated in the affidavit.

6. According to learned counsel for the petitioners, the trial Court while passing impugned order did not consider the controversy on merits and rejected the application on the basis of want of jurisdiction. According to trial Court, such deletion is not within the right and authority of the trial Court. Same according to learned counsel for the petitioners is an illegality looking to the judgments rendered by Bombay High Court in the matter of Mrs. Mahabanoo Navroz Kotwal v. Filoo Fali Bomanji and anr. [AIR 2015 (NOC) 766 (Bom.)].

7. On the other hand, learned counsel for the respondents opposed the prayer made by the petitioners and submits that trial Court rightly passed the impugned order because trial Court had no authority to pass such order.

8. Heard.

9. The question for consideration before this Court in the case in hand is whether a party which does not make any pleadings in plaint or written statement (as the case may be) can incorporate such pleadings in affidavit under Order XVIII rule 4 CPC and whether it can liable to be included as part of evidence or is liable to be ignored ?

10. The Hon'ble apex Court in the case of Nandkishore Lalbhai Mehta v. New Era Fabrics Private Limited and ors. [(2015) 9 SCC 755], has dealt with in somewhat similar fact situation and held that fresh pleadings and evidence which are in variation to the original pleadings cannot be taken unless the fresh pleadings are incorporated by way of amendment in the pleadings. Unless the plaint is amended and a specific plea is taken, the said pleadings ca