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New Bank of India Ltd. Vs. Smt. Raj Rani W/O Jaikishan Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 364 of 1964
Judge
Reported inAIR1966P& H162
ActsCivil Procdure Code , 1908 - Order 6, Rules 7 and 17
AppellantNew Bank of India Ltd.
RespondentSmt. Raj Rani W/O Jaikishan Dass and anr.
Appellant Advocate B.R. Tuli and; S.K. Tuli, Advs.
Respondent Advocate K.L. Kapur, Adv.
DispositionPetition allowed
Cases ReferredNarayanapa v. Suryanarayana
Excerpt:
.....decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the..........resisted, was allowed. when the amended plaint was put in, the defendant was permitted to file a fresh written statement, if so desired. the written statement was actually filed on 11th of may, 1964, and the court fixed 28th of may, 1964, for replication. in the written statement filed by the bank some pleas were apparently included which were inconsistent with the pleas in the earlier written statement. according to the petitioner there was also difference in regard to some dates regarding fixed deposit receipt. an objection was apparently raised by the plaintiff that except in so far as the amendment in the written statement was necessitated directly by the amendment in the plaint no other variation in the amended written statement of the bank in conflict with the earlier written.....
Judgment:
ORDER

I.D. Dua, J.

1. This revision is directed against the Order of the learned Subordinate Judge Ist Class, Amritsar, dated 12th of June, 1964, by means of which he has ordered that all pleas in the amended written statement put in by the petitioner-bank (defendant in the Court below) in answer to the amended plaint so far as they are in direct contradiction to the pleas raised in the original statement be ignored.

2. In order to understand the real substance of the controversy so far as it is relevant for this Court at the present stage the facts may be briefly stated. They are that Smt. Raj Rani widow of Shri Jai Kishan Dass Tandon originally instituted a suit for injunction directing the New Bank of India Limited, (defendant No. 1 in the Court below and petitioner in the present revision in this Court) to deliver possession of the fixed deposit receipt in dispute for Rs. 39,482.83/- np. This suit was instituted in May, 1961. The written statement was put in by the defendant in June, 1961, and it was amended in July, 1961. After recording the parties' evidence the case was fixed for arguments and it was at that stage that the plaintill applied for amending the plaint so as to include in the relevant clause a prayer, in the alternative, for payment of the amount of the fixed deposit receipt, the reason being that in the meantime the fixed deposit receipt was stated to have been matured for payment. This amendment, though resisted, was allowed. When the amended plaint was put in, the defendant was permitted to file a fresh written statement, if so desired. The written statement was actually filed on 11th of May, 1964, and the Court fixed 28th of May, 1964, for replication. In the written statement filed by the bank some pleas were apparently included which were inconsistent with the pleas in the earlier written statement. According to the petitioner there was also difference in regard to some dates regarding fixed deposit receipt. An objection was apparently raised by the plaintiff that except in so far as the amendment in the written statement was necessitated directly by the amendment in the plaint no other variation in the amended written statement of the bank in conflict with the earlier written statement should be permitted. This objection seems to have prevailed with the Court below and it is against this order that the present revision has been preferred.

3. The counsel for the petitioner has submitted that as soon as a plaint is permitted to be amended, the defendant is entitled as a right to file a fresh written statement and the amendment in the written statement already filed cannot in law be confined to the amended portion of the plaint. In support of this submision reference has been made by Shri Tuli, learned counsel for the petitioner, to a Bench decision in this Court in Girdharilal v. Krishan Datt, AIR 1960 Punj 575, and my attention has been drawn specifically to the following observations :--

'On behalf of the respondent observations of the lower appellate Court have been repeated, and the Counsel has submitted that the new written statement should not have contained any other additional plea except the one confined and restricted to the amended portion of the plaint, without the express permission of the Court as laid down in Order 6 Rule 17 Code of Civil Procedure.

I am unable to uphold this contention. In the first place there is no rule of law, statutory or otherwise, which restricts or limits the defendant when he is called upon to file a written statement to an amended plaint, to contest the plaintiff's claim, to any particular pleas. The general scheme of the Code of Civil Procedure and the policy underlying the law of pleadings does not suggest any such restriction and the counsel has not been able to cite any precedent in support of his contention. Pleas in a written statement to an amended plaint sure not exclusively controlled or governed by the provisions of Order 6 Rule 17 of the Code; the provisions of Order 8 are equally if not more relevant and important in this connection.

In my view the question does not appear, strictly speaking to be one of amendment of first written statement which could only be effected with the permission of the Court; it really pertains more to the right of the defendant to contest the suit as made out in the amended plaint read as a whole. The law relating to pleadings should not be construed and applied with undue rigidity and strictness if no prejudice or embarrassment towards fair trial of the suit is caused. It would of course be open to the Court to consider whether or not, being an afterthought, the pleas in question lacked merit, but the right of the defendant to raise the new pleas could hardly be negatived by reference to the provisions of Order 6 Rule 17 only.'

4. On behalf of the respondents Shri Krishan Lal Kapur, the learned counsel for the plaintiff-respondent to begin with referred me to Lakshminarasimhachari v. Sri. Agasthe-swaraswamivaru, AIR 1960 SC 622, where in the High Court on appeal amendment was allowed in the prayer for declaration which was considered to be a formal relief flowing from the allegations in the plaint without involving a change of the cause of action and without requiring a fresh trial, the amendment was held by the Supreme Court to be permissible. In my opinion the ratio of this decision is of little assistance to the respondents in the present case.

5. My attention has next been drawn to Ganba Paiku v. Ganpatisao, AIR 1937 Nag 376, head-note (b) of which reads thus:--

'In a certain suit the defendant was given an opportunity to make a detailed statement under Order 6, Rule 5, Civil P. C., on condition of his paying some amount as adjournment costs. The defendant refused this conditional offer. Subsequently the plaintiff applied for an amendment of the plaint and it was allowed. The amendment was of a formal nature, the parties being well aware of their position throughout. On such amendment the defendant submitted his detailed statement previously refused by him but the Court refused to accept it as being belated: Held : that the amendment of the plaint being of a formal nature, did not reopen the case so as to give the defendant a fresh opportunity irrespective of what had happened before. No case for further pleadings arose on such amendment and the Court in refusing to accept defendant's statement rightly disallowed him to take advantage of the technical plea.' Here again the position in the reported case was different. The amendment, there, was of a formal nature and according to the Court, the defendant was not held entitled to a fresh opportunity by reopening the whole case. The defendant in the reported case had at an earlier stage refused the conditional adjournment offered to him under Order 17 Rule 1, with the result that the Court was held not obliged to accept his belated statement under Order 6, Rule 5 of the Code. This in the view of the High Court should not be overlooked when the amended written statement was sought to be filed and the proceedings taken earlier were not allowed to be reopened. The position before us in the instant case is obviously not identical.

6. The counsel has next cited Ditu Ram v. Amar Chand, AIR 1961 Him Pra 46, where the learned Judicial Commissioner considered the observations of this Court in Girdharilal's case AIR 1960 Punj 575 to be obiter and after distinguishing the facts of that case proceeded to express his dissent with the view that if the plaint is amended the defendant can file a written statement containing pleas foreign to the amended portion of the plaint and at variance with the pleas put forward in the former written statement. This dissent was sought to be supported on the following grounds :

'Pushed to its logical conclusion the aforesaid proposition will lead to the consequence that a party can amend his pleading without the permission of the Court but this position is not countenanced in law and Order 6, Rule 7, Civil Procedure Code specificially provides that a previous pleading cannot be departed from without the permission of the Court.'

7. Lastly reference has been made to Narayanapa v. Suryanarayana, AIR 1950 Mad 46, where it is laid down that there is no provision in the Civil Procedure Code to enable the Court to permit the substitution in toto of one written statement for another already filed, and that it is open to the defendant at the time of the trial of the suit to state the circumstances under which the first written statement which he filed in person was presented. It is obvious that this case also renders little assistance to the respondents.

8. In my opinion, the crucial test is: what is the nature of the order passed by the Court when permitting a fresh plaint to be filed. If at that time the Court does not intend to restrict a fresh plea to be raised merely as supplementary to the trial already held and if it permits a plaint to be filed so that the entire trial could begin from the stage of pleadings, then, in my opinion, it is certainly open to the defendant to put in a fresh written statement untrammelled by his pleas in the earlier written statement. It would undoubtedly be for the Court to consider how far to believe the truth of the plea in the amended written statement in face of the earlier pleading and unless cogent and convincing grounds are shown for going back on the earlier pleas, the Court would in all probability rule out the subsequent plea as an afterthought. I have, however, not been able, as at present advised, to follow as to how the fresh written statement can be controlled by Order 6, Rule 7 of the Code, when the original order calling upon the defendant to file a fresh written statement to the amended plaint is not so I qualified.

9. On behalf of the respondent it has been urged with certain amount of force that in the case in hand it must be deemed that the Court below had not reopened the entire trial but had merely directed the plaintiff to add to the relief clause an additional relief and that the defendants were also accordingly permitted merely to answer to this additional plea and not to put in an absolutely fresh written statement. Whether or not the Court below intended to adopt this procedure is far from obvious and its order is certainly not clear and explicit in this respect. I can see that the amendment in the plaint is of a formal nature, but in the absence of any restriction placed by the Court below, I am unable, as at present advised, to hold that as a matter of law the defendant can be debarred from putting in a fresh written statement to a fresh plaint filed in pursuance of an unqualified order.

10. On behalf of the petitioner, Shri Tuli has stated at the bar that really one of the bank's local officers had misbehaved in the discharge of his duties and as a result of his misconduct and collusion between him and the respondent, fraud has been committed in respect of the fixed deposit receipt in question. It is for this reason that, on true facts having been disclosed the change in the date has been necessitated and the same has been incorporated in the amended written statement.

11. Without expressing any opinion on these statements at the bar, in my opinion, the written statement filed by the defendant bank must be allowed to remain on the record and should not be ignored by the Court below merely as a matter of law on the ground of being an inconsistent plea with the plea in the earlier written statement.

12. For the foregoing, reasons, this petition succeeds and allowing the same I modifythe order of the Court below and direct that the entire written statement should be considered as a pleading put in by the defendant bank. It, however, does not mean that this plea must be believed. The explanation for the modification of the plea is open to consideration by the Court below. The suit appears to have been pending for the last more than threeyears. It is desirable that it should be proceeded with expeditiously and disposed of with due despatch. There would be no order as to costs of these proceedings. Parties to appearin the Court below on 21-12-64.


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