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Chintaman Balkrishna Godbole Vs. Damodar Hari Dixit and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 379 of 1982
Judge
Reported in1986(1)BomCR364; (1985)87BOMLR473
ActsCode of Civil Procedure (CPC) , 1908 - Order 8, Rule 9
AppellantChintaman Balkrishna Godbole
RespondentDamodar Hari Dixit and ors.
Appellant AdvocateS.M. Mhamane, Adv.
Respondent AdvocateP.N. Patwardhan, Adv. for respondent No. 1, ;Ajit P. Shah, Adv. for respondent No. 2
DispositionApplication allowed
Excerpt:
.....lands liable for partition--defendant-purchaser in respect of those lands whether entitled to file supplementary written statement and raise all his pleas including plea of tenancy in respect of those lands-terms which court can impose under order viii, rule 9 of civil procedure code--term prohibiting defendant from taking pleas available to him under law whether can be imposed.;in a partition suit the defendants also stand in the same position as that of a plaintiff and can claim a partition of their own share and can also raise question as to what properties are liable for partition. where a plaintiff in a suit for partition does not claim any share in certain lands, but one of the defendants by way of supplementary written statement claims those lands also liable for partition,..........is disclosed. the suit itself was not yet taken up for trial when defendant no. 13 sought to file supplementary written statement. when the defendant no. 13 is found entitled to file supplementary or additional written statement, i do not see how the court can direct that he shall not take a particular plea which he may be otherwise entitled to. there is nothing in order viii, rule 9 c.p.c. to prohibit the defendant from taking a particular plea while permitting him to file a supplementary written statement. the terms which a court could impose under order viii, rule 9 in my opinion, relate to the time within which it should be filed and the costs. if any, the court may deem fit to award as a condition for filing written statement. no term prohibiting the defendant from taking such.....
Judgment:

K. Madhava Reddy, J.

1-The short question that arises for consideration in this Civil Revision Application filed by defendant No. 13 in Regular Civil Suit No. 1264 of 1967 on the file of the Civil Judge, (Junior Division), Pune is whether the trial Court is justified in rejecting his application for filing supplementary written statement.

2. The plaintiff had filed a suit for partition of joint family properties belonging to Dixit family. Though that family possesses lands in Khed Village, in addition to land bearing Survey No. 723, Hissa No. 2 situate at Parvati and House No. 112, Shaniwar Peth, Pune, the plaintiff claimed partition of only Survey No. 723, Hissa No. 2 of Parvati and did not claim any share in the other properties. To that suit were joined the other co-parceners. None of them initially claimed that the lands at Khed were joint family properties liable for partition. Defendant No. 13, therefore, averred in the written statement filed by him that 'the members of the Dixit family have already sold their respective shares in the said lands prior to the suit i.e. before a period more than twelve years, and now none from the said joint family of Dixits has got any right, title or interest whatsoever in the said lands.' He also claimed that he has acquired adverse possession. He further pleaded in para 3 of that written statement that :---

'Neither the plaintiff nor other defendants appear to have demanded their shares in the lands at Khed. Hence it is not necessary for the time being to supply more particulars than those supplied by this defendant at Clause 1, 2 hereinabove. In view of above position, the said lands cannot be the subject-matter of the suit. However, if some of the other defendants start claiming that they are entitled to the share from the said lands, then in that respect this defendant will submit his explanation in detail about the purchase transaction etc., of the defendants or file a supplementary written statement. He may be granted such liberty.'

No order was passed on this request as to whether he is granted liberty to file a supplementary written statement or not. In other words, this request was neither granted nor rejected. Evidently, the Court at that time intended to pass an order as and when a request for filing a supplementary written statement was made upon any of the parties claiming share in the lands at Khed purchased by defendant No. 13. The suit being one for partition, even the defendants would be in the same position as that of the plaintiff and could appropriately claim a decree for partition and separate possession of their own share in the joint family properties in this very suit. While there were negotiations between the plaintiff and the defendants and the matter was about to be settled, the 2nd defendant, who had earlier not claimed any share in the Khed lands, sought leave of the Court to file a supplementary written statement and upon leave being granted filed a supplementary written statement claiming a share in the Khed lands as well. At that stage when defendant No. 13-petitioner herein, prayed for leave to file a supplementary written statement, the trial Court rejected his request by the order now under revision. Apart from anything else, when the Court had granted permission to the 2nd defendant to claim a share in the Khed lands for the first time by allowing her to file a supplementary written statement, it ought to have, in all fairness, allowed defendant No. 13 also to file a supplementary written statement to her claim. The Court obviously overlooked the fact that in partition suit, the defendants also stand in the same position as that of a plaintiff and can claim a partition of their own share and can also raise question as to what properties are liable for partition. Although the plaintiff in the suit had not claimed any share in the Khed lands, 2nd defendant had now by way of supplementary written statement claimed that those lands are also liable for partition. Defendant No. 13 who is the purchaser of the property from the other members of the Dixit family was entitled to justify his purchase and also to set up such other rights as he may have had in those lands. As the suit was originally framed, Khed lands did not form the subject matter of the suit. The plaintiff had mentioned them in the statement only to meet any possible objection that as partition of all the joint family lands was not claimed and only partial partition was sought, suit was not maintainable. Since the plaintiff has not claimed any partition of Khed lands, defendants No. 13 did not give that particulars of his right or title in the first written statement. When for the first time defendant No. 2 chose to dispute the alienation and sought to claim a share in the said lands, defendant No. 13 who expressly reserved hi right to file a supplementary written statement as and when such claim was made by any of the defendants, he ought to have been granted permission to file the same. The trial Court has acted with material irregularity in refusing to grant permission to defendant No. 13 to file a supplementary written statement. Shri Ajit P. Shah, learned Counsel for defendant No. 2 contended that defendant No. 13 cannot be allowed to set up a plea that he is a tenant of the said lands. According to him such a plea would be inconsistent with the fact of having purchased the said lands, and, therefore, even if defendant No. 13 is allowed to file a supplementary written statement, he should be barred from raising the plea. He relied upon Order VIII, Rule 9 C.P.C. to contend that no pleading subsequent to the written statement of a defendant can be allowed to be filed and that if leave is granted by the Court, the Court could put the defendant on such terms as the Court thinks fit. This contention, cannot be upheld. The plea taken by defendant No. 13 in the first written statement filed by him was sufficient to meet the claim of the plaintiff. As none of the other defendants too had initially claimed that the property purchased by defendant No. 13 was liable for partition, he was not bound to disclose his defence in respect of those properties. In fact in view of the specific averment that the plaintiff is not seeking partition in the Khed lands, the defendant No. 13 who was interested only in those lands could very well have not filed any written statement at all. Only when the 2nd defendant set up her claim to these lands the defendant No. 13 was required to disclose his defence by filing a supplementary written statement. This supplementary written statement in fact is the only written statement that was required to be filed. His claim that even prior to the purchase, he was a tenant and while continuing as tenant he had purchased the land from the members of the Dixit family firstly is not inconsistent with the plea of purchase and secondly it does not take any of the parties by surprise, because the first time when the claim for partition is made in respect of these lands, the defence is disclosed. The suit itself was not yet taken up for trial when defendant No. 13 sought to file supplementary written statement. When the defendant No. 13 is found entitled to file supplementary or additional written statement, I do not see how the Court can direct that he shall not take a particular plea which he may be otherwise entitled to. There is nothing in Order VIII, Rule 9 C.P.C. to prohibit the defendant from taking a particular plea while permitting him to file a supplementary written statement. The terms which a Court could impose under Order VIII, Rule 9 in my opinion, relate to the time within which it should be filed and the costs. If any, the Court may deem fit to award as a condition for filing written statement. No term prohibiting the defendant from taking such pleas as are available to him under the law, can be imposed under Order VIII, Rule 9 C.P.C. The Court having permitted the additional written statement to be filed cannot foreclose the defences open to a party. In fact under Order VIII, Rule 8 any ground of defence which has arisen after the institution of the suit may be raised by the defendant in his written statement. From the facts stated above, it is clear that although this ground of defence was available to him even before the institution of the suit, there was no occasion for defendant No. 13 to raise this plea for these lands were not made subject matter of the suit and none of the parties had claimed a share therein. Now that 2nd defendant has made them the subject matter of the suit by claiming a share therein defendant No. 13 is required to set down his defence. The 2nd defendant's written statement claiming a share in fact amounts to a plaint so far as these properties are concerned. In respect of this claim the written statement sought to be filed by defendant No. 13 would be deemed to be one filed for the first time. Since a written statement was already filed by him leave Court was sought in terms of Order VIII, Rule 9. In allowing such a written statement to be filed, the Court cannot impose any term such as is sought to be pressed by Shri Ajit P. Shah learned Counsel for defendant No. 2. Defendant No. 13 would, therefore, be entitled to file a supplementary written statement and also raise the plea of tenancy. Any such plea raised would be considered by the trial Court in accordance with law. This civil revision application, therefore, succeeds and is accordingly allowed, the order under revision is set aside. Rule made absolute, but in the circumstances of the case, with no order as to costs.


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