Skip to content


Rukhsana Sultana Vs. Mohinder Kaur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 2303 of 1983 and Suit No. 1358 of 1982
Judge
Reported in1983RLR776
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantRukhsana Sultana
RespondentMohinder Kaur
Advocates: Sangeeta Gupta,; Sinjeev Seth,; Bawa S.C. Singh and;
Cases ReferredNew Bank of India Ltd. v. Smt. Raj Rani (supra
Excerpt:
the case focused on the effect of amendment of plaint after filing of written statement - it was ruled that by virtue of order 6 rule 17 of the civil procedure code, 1908, if the plaint was allowed to be amended after filing of written statement by the defendant, then the said amendment of plaint would be restricted to amended portion of the plaint only - - the opening words of this rule 'no pleading subsequent to the written statement' and the words 'shall be presented' clearly convey the imperative mandate of the rule and leave no room for doubt that before any party can make a further pleading after the w/s has been filed the leave of the court roust be obtained. so, non-compliance with a provision like r......restrictions envisaged in r. 7 0. 6. in other words, whenever permission is given to a party to file additional pleadings under r. 9 0. 8 it is implicit in the order itself that he shall abide by the mandatory provision of r. 7 0. 6. in this view of the matter, thereforee, it is not at all necessary for the court, while permitting amendment to the plaint or calling upon the defendant to file additional w/s, to qualify its order and restrict or limit the scope of pleas which may be raised in the additional w/s. (7) it may be noticed that in girdharilal's case (supra) there is not even a remote reference to r. 7 0. 6. so the observation made by dua, j., that: 'there is no rule of law, statutory or otherwise, which restricts or limits the defendant when he is called upon to file a w/s to.....
Judgment:

J.D. Jain, J.

(1) The plaint in this suit was permitted to be amended in certain respects Vide order dt. 12.4.83 and an amended plaint was directed to be filed accordingly. The defendants were also called upon to file written statements to the amended plaint within a certain period, and they have done so. However, the plaintiff has moved this petition u/O. 6 R. 7 read with Section 151, Civil Procedure Code (the Code), complaining that in the garb of replying to the amended portion of the plaint the defendants have absolutely changed their original w/s without seeking permission of the Court for amendment. It is contended that the defendants could have amended their w/s only to the extent it was necessary for them to reply to the amended plaint as allowed by the Court and nothing further. Thus, the grievance of the plaintiff is that new grounds of claim and allegations of fact inconsistent with the previous pleadings of the defendants cannot be permitted unless, of course, they seek amendment of their previous w/Ss under 0. 9 R. 17 of the Code.

(2) This application is hotly contested by counsel for the defendants who has urged that on the plaint being amended a right accrued to the defendants to file fresh w/Ss and that right was not confined to the defenses which may be raised to the amended portion of the plaint, especially when no such limitation on the right to file a fresh w/s was imposed at the time of requiring them to file w/s consequent upon the amendment of the plaint. It is, of course, conceded that certain allegation of fact as embodied in the subsequent w/s are inconsistent with those contained in the previous w/s. For instance, defendant 2 had, in the previous w/s, admitted that the plaintiff was wife of Shri Shivinder Singh, defendant 3, but this fact has been categorically denied in the subsequent w/s filed by them. The short question that arises for decision, thereforee, is: 'Whether the defendants are within their right to raise new pleas or make allegations of fact, in the w/s filed in answer to the amended plaint, which are inconsistent with those raised in the earlier w/s without obtaining permission of the Court for the purpose ?'

(3) There seems to be divergence of judicial opinion on this point.' High Courts of Himachal Pradesh, Gujarat and Patna have taken the view that if a plaint is allowed to be amended after the filing of the w/s by the defendant, the additional w/s that may be filed by the defendant after the amendment of the plaint should be confined and limited to the amended portion of the plaint only, and the defendant cannot, in the garb of replying to the amended portion of the plaint, be allowed to amend his own original w/s without seeking permission of the Court for amending it as required u/O. 6 R. 17 of the Code. Reference in this context may be made to Dittu Ram v. Amar Chand, , Sawan Singh v. Radha Kishan, , Thakkar Babulal Dayashanker v. Metha Kalwam, : AIR1978Guj94 , and Ramyadik Singh v. Sahjada Singh (1970) 18 Bljr 987. On the other hand the Punjab High Court has held that :

'There is no rule of law, statutory or otherwise, which restricts or limits the defen dant 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 Civil Procedure Code and the policy under-lying the law of pleadings does not suggest that the new written statement should be confined and restricted to the amended portion of the plaint and should not contain any other additional plea. The question does not appear, strictly speaking, to be one of amendment of the 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.'

(See Girdharilal v. Krishan Datt, and New Bank v. Smt. Raj Rani, .

(4) Dua, J. (as his Lordship then was) who spoke for the Bench in Girdharlal (supra) was the Presiding Officer in the latter case. Reiterating his earlier view he further amplified :

'The crucial test, in deciding whether the fresh written statement should be confined to the amended portion of the plaint only, 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 it is certainly open to the defendant to put in a fresh written statement untrammelled by his pleas in the earlier written statement.'

(5) To steer clear of the conflict of authority it seems necessary to examine the relevant provisions of law. 0. 8 R. 9 of the Code lays down an important rule of pleading that no pleading subsequent to the W/s of a defendant other than by way of defense to a set off or counter claim shall be presented except by the leave of the Court. The opening words of this rule 'no pleading subsequent to the written statement' and the words 'shall be presented' clearly convey the imperative mandate of the rule and leave no room for doubt that before any party can make a further pleading after the W/s has been filed the leave of the Court roust be obtained. It is thus manifest that once a party has filed a W/s he cannot file another W/s as of right. However, leave to file a replication or an additional W/s etc. may be granted by the Court in exercise of its judicial discretion so that scales of justice are held even and no party suffers on account of any lapse on its part due to inadvertence, oversight or otherwise and the Court can put a party to terms while granting such leave. That apart, the second part of the rule empowers the Court to, at any time, require a W/s or an additional W/s from any of the parties. Obviously this power has been conferred on the Court to elicit full and detailed facts, if need be, in any given case so that the cause of any party dote not suffer for want of necessary and relevant particulars. The genesis of our procedural laws is to be traced to principles of natural Justice. It is, thereforee, implicit in the exercise of this power that the Court will call for an additional W/s or replication etc. ex debtor justitiae whenever it deems it necessary. The procedural requirement that whenever a party is permitted to amend his pleadings the other party should be given a chance and fair opportunity to rebut and meet the same is only a facet of natural justice. However, to say that the moment the plaint is amended a substantive and unfettered right accrues to the defendant to file a fresh W/s would be going too far. So even though the right of a defendant to file an additional W/s to the amended plaint cannot be questioned that right must necessarily be a qualified one and he will not be entitled as of right to file an altogether new W/s untrammelled by the pleadings contained in his previous W/s merely because the plaintiff has been permitted to amend his plaint in certain respect. Conceding such a right would simply imply that the defendant can substitute a fresh W/s in lieu of the old one by introducing averments of fact which are quite inconsistent or incompatible with or contradictory to his earlier allegations of fact. Pushed to its logical conclusion this interpretation of R. 9 may lead to complete obliteration of previous W/s as if it never existed and the defendant may with impunity put forth a fresh W/s completely at variance with the previous one as a result of fresh deliberation or legal advice. 0. 6 R. 7 of the Code expressly prohibits such a course. It lays down that :

'No pleading shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.'

(6) Evidently this rule embodies a fundamental rule of pleadings that no party, except by way of amendment, shall be permitted to take up a case inconsistent with that taken by him in his previous pleadings. This provision will evidently take within its sweep all supplementary pleadings, viz., replication, rejoinder and additional W/s etc. Since this rule is of general application it will pervade and govern all subsequent pleadings of a party notwithstanding that he has been permitted or required by the Court to file a supplementary or additional W/s or replication. In other words, any permission or direction given by the Court under 0. 8 R. 9 to file an additional W/s statement or replication etc. will be subject to the limitation imposed by this rule and in case a party wants to raise any new ground of claim or introduce any allegation of fact inconsistent with his previous pleadings the only course open to him is to seek amendment of the previous pleadings by taking recourse to 0. 6 R. 17 of the Code. One of the principal objects of the pleadings is to prevent surprise at the hearing, for, a party is entitled to know the case of his opponent before he could meet it. 0. 6 R. 7 is, thereforee, designed to prevent deviation/departure from the original pleadings except with the permission of the Court which can be sought only by way of amendment of the pleadings under 0. 6 R. 17. Hence, the prohibition contained in 0. 6 R. 7 cannot be circumvented or evaded on the pretext of filing a fresh W/s under R. 9 0. 8. On the other hand the right exercisable by a defendant or a plaintiff who is called upon to file an additional W/s or replication, as the case may be, is circumscribed and limited by the restrictions envisaged in R. 7 0. 6. In other words, whenever permission is given to a party to file additional pleadings under R. 9 0. 8 it is implicit in the order itself that he shall abide by the mandatory provision of R. 7 0. 6. In this view of the matter, thereforee, it is not at all necessary for the Court, while permitting amendment to the plaint or calling upon the defendant to file additional W/s, to qualify its order and restrict or limit the scope of pleas which may be raised in the additional W/s.

(7) It may be noticed that in Girdharilal's case (supra) there is not even a remote reference to R. 7 0. 6. So the observation made by Dua, J., that: 'there is no rule of law, statutory or otherwise, which restricts or limits the defendant when he is called upon to file a W/s to an amended plaint, to contest the plaintiff's claim, to any particular pleas' cannot be construed as implying that notwithstanding the prohibition contained in R. 7 0. 6 the defendant who is called upon to file a W/s to an amended plaint has an unfettered right to raise any pleas he likes even if they are inconsistent with his earlier pleadings. It appears that the attention of their Lordships was not drawn to this particular provision. However, making a passing reference to R. 7 0. 6 his Lordship said in New Bank of India Ltd. v. Smt. Raj Rani (supra) that :

'I have, however, not been able, as at present advised, to follow as to how the fresh written statement can be controlled by 0. 6, R. 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.'

(8) With great respect I may say that this interpretation has the effect of giving a complete go-by to the salutary rule of pleadings enshrined in R. 7 0. 6. There can be no two opinions that the laws of procedure are devised to advance justice and further its ends. They are not meant to punish the parties or trip people up. However, procedural laws are also laws and are enacted to be obeyed and implemented. The main purpose and object of enacting procedural laws is to ensure that justice is done to the parties. So, non-compliance with a provision like R. 7 0. 6 may, in many a case, lead to miscarriage of justice. I am, thereforee, in complete agreement with the view taken by the High Courts of Gujarat, Himachal Pradesh and Patna that the defendant when required to file an additional W/s to the amended plaint does not get an unfettered right to take up any pleas he chooses and a departure in the subsequent pleadings cannot be permitted in violation of the prohibition contained in 0. 6 R. 7. However I find it difficult to go further and subscribe to the view that the additional W/s to be filed to the amended plaint must confine to the amendments made in the plaint i.e. the defendant can have his say only with respect to the matter introduced by amendment and no further. In my view, there is no warrant for such a conclusion having regard to the plain language or R. 7 0. 6 which simply prohibits a party from raising any new ground of claim or making any allegation of fact inconsistent with the previous pleadings of the party in his subsequent pleadings. It nowhere says that a party called upon to file additional W/s must confine its answer to the amended portion of the opponent's pleadings. Hence, a defendant will be entitled to take up any new plea and even aver new facts in his additional written statement so long as they do not constitute a new ground of claim or are not incompatible with his earlier pleadings and there is no infraction of R. 7 0. 6. For instance, he may bring forth additional facts to explain or amplify the stand already taken in the original W/s. The Court will, of course, ignore the additional W/s if it contains a new ground of claim or allegation of fact which is inconsistent with his previous pleadings.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //