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Roop Chand and ors. Vs. Jawahar Lal Ram Gopal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 122 of 1971, from order of R.P. Gupta, Sub J. 1st Class, Delhi D/- 4-3-1971
Judge
Reported inAIR1972Delhi193
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17 - Order 7, Rule 11 - Order 8, Rule 9
AppellantRoop Chand and ors.
RespondentJawahar Lal Ram Gopal and ors.
Advocates: A.N. Goya, Adv
Cases ReferredNew Bank of India Ltd. v. Smt. Raj Rani.
Excerpt:
.....of pleadings that required written statement - accordingly, the defendant had no right to file a fresh written statement - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the..........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.....
Judgment:
ORDER

1. This revision was admitted on 25th March, 1971, and it came up for confirmation of the stay proceedings before me on 5th April, 1971, when I directed the revision itself to be listed for hearing and also sent for the records. I have heard the revision. The revision is directed against the order of the Subordinate Judge 1st Class. Delhi, dated. 4th March. 1971 by which he has refused the defendant an opportunity to file an amended written statement to the plaint.

2. The brief facts of the case are that the plaintiff on 6th June, 1967 instituted a suit against the defendants for recovery of possession of an immovable property and for compensation and mesne profits and in paragraph 9 of the plaint. they stated that the value of the claim for possession was Rs. 5,000/- being the market value for the suit premises and for purpose of compensation and mesne profits its value was Rs. 1,864.80.

3. The summonses of the suit were served on the defendants who filed a written statement contesting the suit and in particular they contested paragraph 9 of the plaint and stated that the contents of paragraph 9 were wrong and denied and they contended that the market value of the suit premises was much more than Rs. 40,000/-.

4. On the pleadings of the parties a number of issues were framed and the issues which are material before me are issues Nos. 16 and 19. Issue No. 19 was to the effect whether the suit had been correctly valued for purposes of Court fee and jurisdiction and issued No. 16 was to the effect whether the Court had pecuniary jurisdiction to try the suit. The parties led some evidence and the learned Subordinate Judge by his order dated 6th January. 1971, decided the aforesaid issues and in respect of issue No. 19 he recorded a findings that the market value of the portion of the property in dispute was Rs. 10,000/- and he consequently answered issue No. 16 in favor of the plaintiff.

5. As a result of the findings of the Court on issue No. 19 the market value of the property was determined to be Rs. 10,000/- instead of Rs. 5,000/- as alleged in the plaint and the Court finally gave an opportunity to the plaintiffs to amend their plaint and put proper Court fees on the enhances value of the relief of possession. In pursuance of the said order. The plaintiff amended the plaint in which they alleged follows :-

'That the value of the claim for possession is Rs, 10,000/- )Rs. Ten thousand) being the market value of suit premises decided by this Court vide order dated 6th January. 1971 and for purposes of compensation and mesne profits the value of the suit is Rs. 11,864.80 paise.'

After the amended plaint had been filed. the defendants applied to the Court for an opportunity to file a written statement to the amended plaint which has been refused by the Court by the impugned order.

6. I have heard the learned counsel for the petitioners. He has relied on New Bank of India Ltd. v. Smt. Raj Rani. , where I.D. Dua. J. (as his Lordship then was) observed as follows:-

'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 qualified. 'On behalf of the respondent it has been urged 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 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 Court below I am unable as at present advised, to hold that as a matter of low the defendant can be debarred from putting in a fresh written statement to a fresh plaint filed in pursuance of an unqualified order.'

7. I have carefully perused the said authority. In my opinion, it has no application to the facts of the present case. In this case the plaintiffs did not seek out any amendment. The Court decided one of the issues against them and came to the conclusion that the objection of the defendants with regard to jurisdictional value of the plaint would prevail to a certain extent and it found that the valuation given in the plaint was low and it should be corrected to Rs.10,000/-. in pursuance of the said order, the Court was bound to require the plaintiffs to correct the valuation and also to pay the requisite stamp duty and if the plaintiff failed to do so. the Court had to reject the plaint under Rule 11 of Order 7 of the Code of Civil Procedure. This can by no stretch be called amendment of the pleadings requiring a written statement. The defendants cannot be allowed to deny paragraph 9 of the amended plaint or to show that the Court had not decided the issue or that the value of the claim for possession was not Rs. 10,000/- as determined by the Court. So long as the order of the Court deciding the issue was operative, both the parties were bound by the same and their remedy if any, was to challenge it by way of appeal or otherwise in an appellate Court, but no further issued or contest on the same question can be permitted. Where the defendant does not have a right to contest an amended portion of the pleadings, he cannot, by any principle of law, be allowed to have a right to file a fresh written statement, nor has the Court called upon the defendant as in the New Bank of India (supra) to file a written statement and so he has no right to do so.

8. As a result. I hold that the order of the lower Court is correct and the revision is misconceived and is dismissed with no order as to costs.

9. Revision dismissed.


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