1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.439 of 2008 (Sau. Vijaya W/o Vedprakash Mittal and another v. Brijmohan s/o Maheshchandraji Agrawal) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri S.Z. Sonbhadre, Advocate for Petitioners. Shri M.B. Naidu, Advocate for Respondent. CORAM : R.C. Chavan, J. DATE : 30th July, 2008 1. By this petition, the petitioners/original defendants in Special Civil Suit No.465 of 2004 challenge the orders passed by the learned Civil Judge, Senior Division, Nagpur, below Exhibits 108, 110 and 115, whereby the learned Judge refused to permit the petitioners to file list of witnesses, tender documents as per list and make extensive amendments in the written statement. 2. The petitioners are the owners of the property which they agreed to sell to the respondent/plaintiff on 10-3-2003. According to the petitioners, an agreement to execute a registered agreement of sale was entered into on that day. The total consideration was agreed to be paid at Rs.21,51,000/-, out of which a sum of Rs.2,50,000/- was paid by the respondent. A sum of Rs.18,01,000/- lacs was agreed to be paid within a 2 reasonable period, i.e. at the time of execution of the sale-deed. The balance of Rs.1,00,000/- was agreed to be retained by the purchaser till recovery of possession. According to the petitioners, the purchaser did not have sufficient funds and, therefore, wanted to kill time. For this purpose, he filed a suit for specific performance of agreement of sale after letters dated 11-7-2003 and 30-7-2003 were exchanged between the parties. The petitioners filed a written statement on 16-8-2004. Issues were framed on 4-1-2007. The plaintiff closed his case by filing a pursis Exhibit 89. The petitioners/defendants led their evidence vide Exhibit 95. Thereafter on 26-9-2007, they sought to file the lists of witnesses and documents vide applications Exhibits 108 and 110, which came to be rejected on that date itself. On 29-10-2007, the petitioners filed an application for amendment to the written statement, whereby the they sought to insert paragraphs 19 to 32 to their written statement. The learned Civil Judge rejected this application by order dated 3-12-2007 holding, among other things, that after the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure came into force with effect from 1-7-2002, it would be impermissible to allow such an amendment unless it is shown that in spite of due diligence, the defendants could not have raised this plea. Aggrieved thereby, the petitioners are before this Court. 3. By application Exhibit 108, the petitioners wanted to tender a list of witnesses, which included defendants themselves, one of the sons of defendant No.1, the Divisional Railway Manager, Central Railways, Nagpur for proving a railway ticket and the Joint Sub Registrar of Nagpur City in respect of registering the documents on 31-8-2007 and 3-9-2007. This application was rejected holding that it was not filed at appropriate stage and that it was filed after the defendants had examined themselves. 3 4. By application Exhibit 110, the applicants sought to file as many as 16 documents. Some of which were transfer certificates and certificates in respect of education of family members of the petitioners, leave and licence agreements in respect of properties at Pune, an alleged dummy agreement, which was registered by the Sub-Registrar, some certificates issued in the year 2004 and a statement of accounts. After considering the objections from the other side, this application was rejected by the learned Trial Judge. 5. The learned counsel for the petitioners submitted that at least two documents, viz. the dummy agreements, were executed after the written statement was filed and there was no question of mentioning these documents in list of documents at the time of filing of written statement. The petitioners want to file their dummy agreements to show that the contention of the respondent/plaintiff that such agreements could not be registered, was not correct, since these agreement were registered. In fact this is one of the reasons why a Sub-Registrar is sought to be examined. A Sub-Registrar may commit an error in registering an agreement. It cannot create a precedent of registering the similar agreements. Likewise, the Registrar may refuse to register an agreement wrongly. It cannot create a precedent that the Registrar is justified in refusing to register such agreements. This aspect has to be established by reference to the relevant rules and, therefore, these documents have absolutely no bearing on the controversy and were rightly disallowed by the learned Trial Judge. As far as other documents are concerned, all of them were in possession and power of the petitioners and there is no reason why they have not been filed at the appropriate stage if they were so relevant. 4 6. The learned counsel for the petitioners relied on a number of judgments to support his contention that the learned Trial Judge erred in refusing to allow the amendment to the pleadings simply because the amendment was sought after the trial had made substantial progress. Most of these judgments pertain to suits which had been instituted prior to the amending provisions came into 1-7-2002. Relying on the judgment of a learned Single Judge in Bharat Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd., reported in 2007(1) Mh.L.J. 331, the learned counsel for the petitioners contended that even after the amendment to Order 6 Rule 17 of the Code of Civil Procedure, the principles and guidelines laid down by the Supreme Court and the High Courts before the Amending Act came into force would have to be considered. There can be no doubt that the principles and guidelines given from time to time in respect of various aspects of Order 6 Rule 17 of the Code of Civil Procedure would continue to hold the field if they are not eclipsed by the amendment. If those guidelines are contrary to the portion of the rule amended, then they may not be applicable. Even after the amendment if the party makes out a case that in spite of due diligence it could not have raised the matter before the commencement of the trial, an amendment would have to be allowed. 7. The learned counsel for the respondent/plaintiff relied on the judgment of the Supreme Court in Ajendraprasadji N. Pande and Another v. Swami Keshavprakeshdasji N. and Others, reported at AIR 2007 SC 806, where too the fact of amending a written statement after the trial began was considered by the Court. In paragraph 51 of the judgment, the Court held that if the party had not sought appropriate amendment at appropriate stage in the manner envisaged by law, it would disentitle the party to such a relief. 5 8. In this case, the application for amendment does not disclose any good ground for not raising these pleas before the trial made headway. The only reason given is that there was a communication gap between the defendants and their counsel. Now it is for the party to communicate with the Advocate and it is also equally the duty of the Advocate to take all instructions in the matter. When an Advocate accepts a brief, he does not do so in order to be a spokesperson for a party to speak only that much which the party had conveyed, but to assist the Court as an Officer of the Court to appropriately adjudicate on the matter. Therefore, communication gap cannot be a justification for adding pleas running into 13 paragraphs to the original written statement containing 18 paragraphs. It is not shown that the applicants are illiterates. On the other hand, they, or at least some of them seem to be well educated. Therefore, their failure to communicate with their counsel cannot be allowed to negate the restriction imposed by the provisions whereby Rule 17 of Order 6 of the Code of Civil Procedure was amended. This restriction was imposed in order to inject speed in the trial of the civil suits, in order to curtail amendments after the trial makes substantial progress. All this is sought to be nullified by the strategies of the petitioners, which cannot be countenanced. 9. The petitioners have not shown that there exists any ground which can justify invocation of writ jurisdiction of this Court under Article 226 or 227 of the Constitution. 10. The petition is consequently rejected. 11. At this stage, the learned counsel for the petitioners states that this Court has stayed the proceedings before the Trial Court and if this stay is 6 continued for another ten weeks, the petitioners would approach the Supreme Court. Though if the stay is continued for some period, it would amount to further delay in the proceedings, in order to afford the petitioners an opportunity to take their chance, the Trial Court shall not proceed further with the matter for a period of ten weeks. This should not be construed as grant of leave to appeal to the Apex Court. JUDGE Lanjewar