The main legal point established is the requirement of due diligence for amendments to pleadings after the commencement of trial and the limited jurisdiction of the court to allow such amendments.

JUDGMENT :

Rajiv Sahai Endlaw, J.

Application of the plaintiffs, for summary judgment in favour of the plaintiffs is pending consideration. The defendants no.1 and 4 have thereafter filed IA No.1701/2019 and 1702/2019 for amendment of their written statements. It is however the settled position in law, that an application for amendment of pleadings, even if filed subsequent to the application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) or under Order VII Rule 11 of the CPC or for summary judgment, is to be considered first. Accordingly, the counsel for the defendants no.1 and 4 and the counsel for the plaintiffs have been heard on IAs No.1701/2019 and 1702/2019.

2. I may at the outset state that both the applications for amendment of written statements have been filed, invoking Section 151 of the CPC. Upon attention of the counsel for the applicants / defendants no.1 and 4 being drawn to the said fact, he states that though he had filed the application invoking Order VI Rule 17 of the CPC but the Registry of this Court raised an objection and asked the counsel to file the application under Section 151 of the CPC and accordingly the change was made.

3. On enquiry, the counsel for the applicants / defendants 1 and 4 has nothing to show that the Registry had so raised an objection. If any objection had been so raised, it would have been in writing and cannot be verbal and the application would have been returned to the applicants / defendants no.1 and 4 with the said objections. It is thus quite obvious that an alibi of the objection by the Registry is being falsely taken.

4. I may however observe that even if the Registry had raised such an objection, it is the duty of the counsel to inform the Registry of the correct position, by citing the law. It is the Advocates who are supposed to know the law and if a wrong objection is raised by the Registry, to satisfy the Registry in that respect, instead of blindly following the Registry.

5. The counsel has been cautioned, that if in future, such applications are filed, they shall be dismissed at the threshold. It appears that that is the only way to inculcate discipline.

6. Issues in this suit were framed on 20th September, 2017 and affidavits by way of evidence directed to be filed within four weeks and commission issued for recording evidence and the parties directed to appear before the Commissioner on 17th October, 2017.

7. A perusal of the commission proceedings shows the parties to have appeared before the Commissioner appointed for recording evidence, on 16th November, 2017 when statement of PW1 was partly recorded and the proceedings adjourned to 24th November, 2017 for further statement of PW1. On 24th November, 2017, further statement of PW1 was recorded and the proceedings adjourned to 16th December, 2017.

8. The suit came up before the Court on 6th December, 2017, for disposal of the pending applications, when finding that admission / denial of documents was not complete, and observing that recording of evidence could not commence unless there was admission/denial of documents, the parties were directed to file affidavits of admission / denial of documents and the proceeding on commission stayed. Vide subsequent order dated 20th July, 2018, the commissioner was directed to complete the evidence of the parties within three months there from. However vide order dated 24th August, 2018, on application of the applicants / defendants, the commissioner was again directed to not proceed with recording of evidence. Ultimately, vide order dated 20th November, 2018, the recording of evidence before the Commissioner was ordered to go on. IAs No.1701/2019 & 1702/2019 have been filed thereafter.

9. The counsel for the defendants no.1 and 4, upon attention being drawn to the proviso to Order VI Rule 17 of the CPC, is found to be oblivious of the requirement therein, to satisfy the Court, that inspite of "due diligence", the pleas sought to be taken by way of amendment could