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Vinayak Nilkant Kale and anr. Vs. Shantabai Dattatraya Deshpande and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 362 of 1982
Judge
Reported inAIR1983Bom172; 1982(1)BomCR952
ActsCode of Civil Procedure (CPC), 1908 - Order 8, Rule 1
AppellantVinayak Nilkant Kale and anr.
RespondentShantabai Dattatraya Deshpande and anr.
Appellant AdvocateAjit P. Shah, Adv.
Respondent AdvocateM.D. Angal, Adv.
Excerpt:
.....be written statement was not taken on record by the trial court - the appellate court allowed to file written statement - the defendant sought to file different document as their written statement - it was held that the new document was not incapable of being taken on record as the written statement of the defendants - they might have noticed certain error of omission or commission in the old document. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating..........number as such was given to the same. it is mentioned above that the application for leave to file written statement was numbered as exhibit 12. but the document sought to be filed as written statement was not numbered by the court, evidently, because it was not taken by the court on record at all. after rejecting the said application the court proceeded to hear the suit and an ex parte decree for defendants' eviction was passed by the court on the same date i. e. on 16th april, 1981.against the said ex parte decree. civil appeal no. 356 of 1981 was filed by the defendants and a grievance was made before the appellate court that the trial court was not justified in refusing to the defendants even the short time asked for filing the written statement. this contention of the.....
Judgment:

1. A somewhat interesting question arises in this revision application. After the order was passed against the defendants that the suit against them should proceed ex parte because no written statement was filed on the due date, a document purporting to be the written statement of the Advocate for the defendants, was sought to be filed in the Court together with the application for taking the same on record and for setting aside the previous order directing the suit to proceed exparte. that written statement was not taken on record. In the technical sence, the application was rejected and an exparte decree was passed against the defendants.

2. In appeal, the ex parte decree had been set aside and the defendants were directed to file their written statement in the trial Court on 7-12-1981. But on that day the defendants sought to file not the same previous document but a different document signed by the defendants as well as their Advocate as their written statement. The plaintiff objected to the said new written statement being taken on record and insisted that the defendants should be allowed, on principle, to file only the earlier document signed by their Advocate as their real written statement and no other new document as their written statement as such. These objections have been upheld by the trial Court and the order in that behalf is the subject matter of this revision application.

These are in brief the facts of the case and the question that arises is as to whether there is any bar against the defendants from filing what the plaintiffs describes as their new written statement.

3. I will not state the facts in some details. The plaintiff is the owner of the suit premises were given to the defendants by him on leave and licence. Civil Suit No. 10 of 1980 was filed by him for possession of the suit premises after allegedly revoking the said licence.

4. 4th June 1980 was the date fixed by this Court for the defendants to file the written statement. The defendants had filed their appearance before that date and the vakalatnama was duly filed by their learned Advocate appearing on their behalf before that date that is before 4-6-1980. But on 4-6-1980 no written statement was filed by the defendant nor was an application presented before the Court for extension of time. The Court therefore ordered the suit to proceed ex parte and the hearing of the same was fixed on 9-6-1980. But before suit could actually proceed exparte, an application was made on behalf of the defendants for setting aside the abovementioned order dated 4-6-1980 directing the suit to proceed ex parte. However, the application was rejected by the trial Court although the ex parte decree as such was not passed on 9-6-1980. On 10-6-1980, an application Exhibit 12 was made on behalf of the defendants once again making the same prayer of setting aside the previous order dated 4-6-1980 directing the suit to proceed ex parte. But at this time, along with this application. a document purporting to be the written statement of the defendants but signed only by the learned Advocate for the defendants was produced before the Court. I may state here that it was the case of the defendants that on 4-6-1980 itself they had filed an application for extension of time to file the written statement but the application was misplaced by the clerk of Court somewhere which was the reason why the order of ex parte proceedings came to be passed. However, the trial Court was not impressed by any of these pleas and even the second application Exhibit 12, was rejected by the trial Court. The result was that the document which purported to be the written statement of the defendants but which was not signed by either of the defendants (though it was signed by their Advocate) was not technically taken by the Court on record and it is common ground that no separate Exhibit number as such was given to the same. It is mentioned above that the application for leave to file written statement was numbered as Exhibit 12. But the document sought to be filed as written statement was not numbered by the Court, evidently, because it was not taken by the Court on record at all. After rejecting the said application the Court proceeded to hear the suit and an ex parte decree for defendants' eviction was passed by the Court on the same date i. e. on 16th April, 1981.

Against the said ex parte decree. civil appeal No. 356 of 1981 was filed by the defendants and a grievance was made before the Appellate Court that the trial Court was not justified in refusing to the defendants even the short time asked for filing the written statement. this contention of the defendants was accepted by the Appellate Court and hence by its order dated 18-11-1981 the Appellate Court set aside the ex parte decree and remanded the matter to the trial Court for decision according to passed against the defendants and payment of costs was made a condition precedent for leave to the defendants to defend the suit. The defendants were directed to appear before the Court on 7-12-1981 and were also directed to file their written statement before the c. Implicitly, the trial Court was ordered to take on record the written statement that would be filed by the defendants.

5. On 7-12-1981 the defendants appeared before the Court and a new document purporting to be their written statement signed by both the defendants and verified by one of them and again signed by their learned Advocate was sought to be filed as their written statement. The plaintiff objected to the taking on record of such a new document as their written statement. The plaintiff insisted that the defendants were at liberty to file the self-same document which was sought to be filed as written statement on 10-6-1980 along with application Exhibit 12 and no other document as their written statement. The contention of the plaintiff was that the Appellate Court had given permissions to the defendants to file only that document which was sought to be filed along with application Exhibit 12 as their written statement and no other document. This contention was upheld by the trial Court by its order dated 17-4-1982. The learned Judge observed that the defendants wanted to add some fresh pleadings, by way of defence to the original written statement dated 10th June 1980. He observed that they could be permitted to file an application for amendment of their previous written statement, but they cannot be permitted to file a fresh written statement, when one is already on record though not signed and exhibited. He therefore held that the written statement submitted on 7-12-1981, by the defendants cannot be accepted as their written statement but that the document dated 10-6-1980 was itself their written statement and he directed the defendants to sign the said written statement. He gave liberty to the defendants later on, if they so desired, by taking appropriate proceedings in that behalf. It is this order which is under challenge before me in this revision application.

6. What the facts boil down to is already set out at the outset in this judgment. The written document which purported to be filed along with the application Exhibit 12 was not signed and verified by the defendants. It is true that though it was not signed by any of the defendants, it was signed by the defendants' Advocate. But it cannot be disputed, and in fact it has not been disputed, before me, that in the Court such as Pune, where the Civil P. C. applies in its fullness. no written statement can be taken on record unless the same is signed by all the defendants and verified at least by one of them or by some one who can claim knowledge about the facts of the case personally. The very fact that the learned Judge has directed by his impugned order, the defendants also with application Exhibit 12, dated 10-6-1980 and to file that document as their written statement means and denotes that unless the document which purported to be a written statement was in fact singed by the defendants and was fully verified, it would not partake the character of written statement of the defendants at all.

7. But that apart the point is that till the document was actually taken on record by the Court and it was duly exhibited by the Court the defendants always ahd the locus penitential to withdraw the said document and to file another one of their own choice. The situation can be conceived of in which the defendants have got prepared the draft of their written statement but have had no opportunity to satisfy themselves that whatever they wanted to say in that document by way of their defence has been fully or correctly set out therein. A situation is readily conceivable that at the last moment, just before the filing of the document in the Court or just before the Court takes cognizance of it and orders the same to be exhibited, the defendants' glance over the document and realise that there is some mistake of omission or commission committed by say the typist or even by themselves. Until the document is exhibited by the Court on record and until it becomes, technically, the part of the record, they are certainly at liberty to correct that mistake. the position that existed on 10-6-80 was this position and it did continue to exist even till 7-12-81. If the defendants had the locus penitential to withdraw that document and file another document as their own written statement on 10-6-1980, just before the order rejecting the application Exhibit 12 was passed, such locus penitential of the defendants did not disappear by any reckoning, until 7th December, 1981. To my mind, therefore, there is nothing amiss in the defendants' desire to have a second look at the document which was purported to be filed as their written statement, to notice certain error of omission or commission in the same and to file a new written statement containing correct facts and contentions in the place of the old document.

8. I do not find any legal flaw in this reasoning which is the substance of what was submitted by Mr. Shah the learned Advocate for the petitioner. But Mr. Angal, the learned Advocate appearing for the opponent plaintiffs contended that such a view militates against the order passed by the Appellate Court in favour of the defendants themselves. He firstly invited my attention to certain factual position. Firstly he pointed out that the new written statement now sought to be filed by the defendants disclosed departure from their earlier pleadings contained in the previous document which he mentions as their first written statement. Secondly he pointed out that according to the defendants themselves, what was sought to be filed on that day, that is 10th June, 1980, was their written statement. He contended that the signatures of the defendants on the said document and their verification of the same was a matter of mere formality. He further refers to the fact that the defendants had not remained satisfied only by filing the written statement dated 10-6-1980 along with the application Exhibit 12. He points out that even an affidavit was filed by the defendants stating therein the said document to their written statement. Mr. Angal, therefore, contends that it does not lie in their mouth now to contend that what was sought to be filed by them on 10-6-1980, was not their written statement. He contends that there cannot be two written statements on record and since the earlier one is the real written statement the new written statement sought to be filed on 7-12-1981 is incapable of being taken on record as written statement of the defendants. Thirdly Mr. Angal invited my attention to the order passed by the learned Assistant Judge and he particularly relied upon the following observations of the learned Judge on the basis of which the learned Assistant Judge allowed the defendants to file their written statement:--

'Taking into consideration the facts and circumstances in the instant case, I am inclined to take the view that this was a fit case, in which the learned trial Judge ought to have allowed defendants Nos. 1 and 2 to put in their written statement when they had appeared at the earlier opportunity on 9-6-1980, after their absence on 4-6-1980 and there was nothing improbable or unsustainable in that behalf.'

Mr. Angal also relied upon the observations made by the learned Judge in para 10 of his judgment which are as follows:

'Moreover the written statement of defendants Nos. 1 and 2 also came to be filed in the Court below later as found in part 10 'D' file dated 10-6-1980, though it does not appear to have been signed by any of the defendants Nos. 1 and 2. At least, this showed that defendants Nos. 1 and 2 were anxious to put in their written statement, if permitted by the Court below.'

Relying upon these observations what Mr. Angal contended was that what the appellate Court allowed the defendant to file was the same document dated 10-6-1980, filed along with the application and not the present document which is sought to be filed on 7-12-1981, which purports to be the defendants' present written statement.

8A. Mr. Angal nextly contended that the ground No. 21 in the memo of appeal filed by the defendants revealed the matter beyond realm of doubt. The said ground No. 21 runs as follows:--

'Written statement of the defendants which is on record be taken as duly filed and the suit be remanded to Lower Court and appeal may be allowed.'

Relying upon this ground in the memo of appeal Mr. Angal contends that the documents sought to be filed on 10-6-1980 was owned by the defendants to be their written statement and now they were not entitled to go back upon their contention.

9. I am unable to accept any of Mr. Angal's contentions. So far as the first contention is concerned, namely, that the document filed on 7-12-1981, reflected departure from earlier pleadings cannot be of any relevance at all. It is only if the document sought to be filed on 10-6-1980 is regarded as the written statement field by the defendants then the question of any departure from the earlier pleadings and attempt to file a different pleading would arise. The document filed on 10-6-1980 was not a written statement at all because unless the document is signed by the parties and is duly verified, it cannot partake the character of the pleadings at all -- whether it is plaint to be filed by the plaintiff or written statement to be filed by the defendants. As mentioned above the parties have locus poenitentiae to make any changes they desire until the document is actually filed in and forms part of the record.

Mr. Angal's second contention that the signature and verification of the document purporting to be the written statement is a mere formality, is statement of law which need just to be stated to be rejected. It is true that in the affidavit filed by the defendants the said documents were referred to. But that statement does not amount to the signature on the written statement of verification of the written statement. It may be that in appropriate case the Court will read the written statement along with affidavit and if the affidavit is signed by the defendants the Court might takes the view, in an appropriate case, that the requirement of signature on the verification stood complied with by reading both the documents together as one document. But this is not possible in the present case. The affidavit which is relied upon is not sworn by both the defendants at all. It cannot be disputed that even on 10-6-1980 if the learned Judge was inclined to accept the said document was written statement the defendants would have the locus poenitentiae to make any alteration in the defendants sought to be filed as the written statement even without asking the permission of the Court before it was finally and irretrievable tendered before the Court and became part of the record of the Court. The question is as to how long such locus poenitentiae continues. To my mind, in the context of the facts of this case, the locus poenitentiae continues until a document duly verified was filed in the Court. Such a document was filed by the defendants for the first time on 7-12-1981. The defendants cannot file any different written statement after that date. The distinguishing factor in the two documents is that the earlier document is not signed and verified by the defendants whereas the subsequent one is duly signed and verified by the defendants. The later one, therefore, is the written statement and not the former.

The contention that the learned Assistant Judge had ordered the filing of the self-same document dated 10-6-1980 as the written statement of the defendants and no other document is wholly devoid of any substance. I have perused and scanned the entire judgment of the learned Judge, but have not found any statement having been made by the learned Judge to the effect that the defendants were ordered to file only the same document dated 10-6-180 as their written statement and not any other document as such. What the learned Judge has directed the defendants to do and what the learned Judge, has ordered the Lower Court to accept is the defendants' written statement. When the Assistant Judge referred to the written statement what he implied was a written statement contemplated by the Code of Civil Procedure. He has not even murmured that the self-same document dated 10-6-1980 should be taken on record and that the Court should prevail upon the defendants to sign the self-same document so as to make it their written statement. If that was the intention of the learned Judge, the learned Judge would have directed the defendants to sign the document dated 10-6-1980 and not to file the written statement as directed by him.

10. The last objection of Mr. Angal also does not carry the plaintiff's case any further. In the first place the memo of appeal contains the grounds which are not part of pleadings in the trial Court. The memo of appeal is not even signed by the parties. The memo of appeal is not supported by any affidavits. But even assuming that all these things have been done still what was done was only a prayer. On 10-6-1980 an application was made on behalf of the defendants that the document which was signed by their learned Advocates should be taken on record, but they ahd the locus poenitentiae to make correction in the same. The prayer contained in ground No. 21 of the appeal is nothing but same prayer repeated in the memo of appeal. If the locus poenitentiae of the defendant continued until the learned trial Judge ahd actually taken the documents on record as the defendants' written statement, the same locus poenitentiae would continue until the learned Judge purported to pass an order on 7-12-1981. Before passing of that order the defendants had already corrected the document. I find no logical reason why the statement made in the memo of appeal should be held so sacrosanct that it should override the provisions of the Civil Procedure Code.

11. Mr. Angal further contended that he had no objection to the defendant's making an application for amendment of their written statement dated 10-6-1980. He even made statement before the Court that he would give consent to any application for amendment of the defendants' written statement. He was however firm on the point that the written statement sought to be filed on 7-12-1981 should not be allowed to go on record as the defendants' written statement.

As stated above the fallacy lies in believing that the defendants are trying to file two written statements. Once it is appreciated that what was sought to be filed on 10th June, 1980 was not in the eyes of law, the written statement at all the question of defendants being allowed to file a new written statement does not arise.

Moreover I must observe that if Mr. Angal's fear consists of the fact that some admission was contained in the document sought to be filed as the written statement on 10-6-1980, and if the same is dropped and omitted in the written statement filed on 7-12-1981 he normally should have no fear in that behalf. Even if the written statement is allowed to be amended by allowing the defendant to omit the admissions made in the original written statement expressly or by implication the plaintiff is always entitled to use the previous written statement as a piece of evidence to be relied upon as the defendants' admission. Likewise, the fact that the defendants had filed some document in which certain alleged admissions were made in favour of the plaintiff cannot be wiped of at this stage by the mere factum of the defendants choosing to file a different document as their written statement. The plaintiff can make appropriate application in the trail Court for bringing that document dated 10-6-1980 purporting to be the defendants' written statement accompanying the application Ex. 12, on record as a piece of evidence containing the defendants' admission. Therefore, the ultimate effect of both the procedures would be practically the same. The objection raised by Mr. Angal regarding the document dated 7-12-1981, while. at the same time, consenting to any amendment being made to the document filed on 10-6-1980, appears, to my mind, to be without any purpose.

12. The revision application therefore succeeds. The Rule earlier issued is made absolute.

However, in the circumstances of the case, there shall be no order as to costs.

13. Rule made absolute.


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