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Sawan Singh and ors. Vs. Radha Kishan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. Nos. 33 of 1974 and 2 and 40 of 1976
Judge
Reported inAIR1980HP8
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rules 7 and 17 - Order 8, Rule 9
AppellantSawan Singh and ors.
RespondentRadha Kishan and ors.
Appellant Advocate K.D. Sood, Adv.
Respondent Advocate Chhabil Dass, Adv.
Cases ReferredDittu Ram v. Amar Chand (supra) and Tek Chand Chitkara
Excerpt:
- .....amendment of the pleadings. accordingly the learned subordinate judge rejected the additional writtenstatement and directed the defendant to file another additional written statement in accordance with law.4. in c. r. no. 33 of 1974, from some of the original plaintiffs one santosh kumari had purchased the property during the pendency of the suit. accordingly she applied for substitution of her name in place of the vendors. the plaint was amended and under order 8, rule 9 the defendant was directed to file additional written statement. again in that case it was alleged that in the additional written statement certain inconsistent pleas were taken and contradictory facts were alleged as compared to the original pleadings on behalf of the defendant.the learned subordinate judge,.....
Judgment:

D.B. Lal, J.

1. In these three revisions: C. R. No. 2 of 1976. C. R. No. 40 of 1976 and C. R. No. 33 of 1974, since a common question of law arises for our consideration, we have chosen to decide them by giving a common judgment.

2. In C, R. No. 2 of 1976, the original claim of the plaintiff-respondent was of Rs. 20,360/- and subsequently by way of amendment the plaintiff sought for theenhanced claim of Rs. 35,800/-. Accordingly after allowing the amendment, under Order 8, Rule 9 of the Civil P. C. the court asked for additional written statement. When the said additional written statement was filed, it was alleged that certain new grounds of claim were pleaded and certain allegations of fact inconsistent with the previous pleadings were also made.

The learned Subordinate Judge held that the defendant, without seeking amendment of the written statement, could not take up such new pleas which could even be inconsistent with the pleas already taken in the previous written statement. Following a decision of this Court in Dittu Ram v. Amar Chand (AIR 1961 Him Pra 46), the Subordinate Judge did not permit the defendant to file the additional written statement. He rather asked him to apply for amendment of the pleadings. There is also another short ground taken in this revision which relates to the payment of Rs. 100/- as costs subject to which the plaint was permitted to be amended. That point, however, should not engage our attention because the learned counsel concedes that Rs. 100/- shall be paid to the defendant, and so, that part of the controversy no longer remains to be resolved.

3. In C. R. No. 40 of 1976, a plea was raised on behalf of the defendant that the suit was undervalued for purposes of court-fee and jurisdiction. In view of that plea taken by the defendant, the plaintiff sought for the amendment and alteration in the valuation put in the plaint. When the plaint was thus amended, under Order 8, Rule 9 of the Civil P. C. the Court directed that the additional written statement be filed. While filing the written statement, again it was alleged that certain pleas were taken which were new grounds of claim and certain allegations of facts inconsistent with the previous pleading were also made. The learned Subordinate Judge considered Dittu Ram v. Amar Chand (supra) as well as Tek Chand Chitkara v. Union of India (ILR (1974) Him Pra 616), and held that the additional written statement could not set up new pleas or inconsistent facts in derogation of Order 6 Rule 7 without seeking an appropriate amendment of the pleadings. Accordingly the learned Subordinate Judge rejected the additional writtenstatement and directed the defendant to file another additional written statement in accordance with law.

4. In C. R. No. 33 of 1974, from some of the original plaintiffs one Santosh Kumari had purchased the property during the pendency of the suit. Accordingly she applied for substitution of her name in place of the vendors. The plaint was amended and under Order 8, Rule 9 the defendant was directed to file additional written statement. Again in that case it was alleged that in the additional written statement certain inconsistent pleas were taken and contradictory facts were alleged as compared to the original pleadings on behalf of the defendant.

The learned Subordinate Judge, however, found that no new plea was taken and rather some clarification of the previous pleas was made. He further found that while filing the additional written statement, the defendant was at liberty to take any plea he preferred because the very order made by the court directing him to file an additional written statement justified the taking up oi even inconsistent pleas. So saying the learned Subordinate Judge allowed the amended written statement. The plaintiff has felt aggrieved and he has filed the present revision.

5. Thus it is evident that in all the three revisions a common question of law arises as to whether in a case where plaint is amended and the court directs for additional written statement under Order 8, Rule 9, the defendant would be at liberty to take up any plea he prefers even in derogation to Order 6, Rule 7 and Order 6, Rule 17 of the Civil P. C. without seeking for any amendment in the pleadings.

6. Since there was an apparent contradiction between the two decisions taken by this Court, one by C. R. Thakur, J. in Lachhmi Devi v. Darshan Singh Kochher (Civil Suit No. 12 of 1969, decided on 27-11-1972) and the other by the learned Chief Justice of this Court in Tek Chand Chitkara v. Union of India (supra), these three revisions have been referred to a larger Bench to resolve the controversy. This is how the three revisions have been set down before us for decision.

7. In order to resolve the question proposed before us, we would at first prefer to refer to the statutory provisions in this connection. In the schemeof the Civil P. C., 1908 Order VI deals with pleadings generally meaning there-by that the provisions of this Order equally apply to plaints as well as to written statements. Order VI, Rule 7 stands like this:--

'7. 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.' Since the rule itself talks of 'except by way of amendment', we refer to Rule 17 of this Order which runs like this:--

'17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.'

8. Order VII deals with plaint, and we have not to refer to any provision therein. Order VIII deals with written statement and we come across Rule 9 in this Order, which may be relevant:--

'9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.'

It is to be noted that Rule 9 of Order VIII deals with subsequent pleadings. The prohibition is there to file additional written statement except by the leave of the court and upon such terms as the court thinks fit. It is under this provision that the court allowed the additional written statement to be filed when the plaint was ordered to be amended. At the same time, it is evident that there is nothing in Rule 9 of Order VIII which derogates from the provisions of Order VI, Rule 7 or Rule 37 In fact those two provisions deal with departure in the pleadings or amendments to be made in the pleadings and they stand on independent footing, totally uninfluenced by Rule 9 of Order VIII.

9. We shall then proceed to notice the relevant decisions of this Court as well as of the High Court of Punjab and Haryana which were referred to us There is a cleavage between these decisions inasmuch as Dittu Ram v. Amar-Chand (supra) and Tek Chand Chitkarav. Union of India (supra) deal with one side of the picture. These two cases lay down that in a case where due to amendment in the plaint, additional written statement is asked to be filed, nevertheless, a departure in the pleadings cannot be permitted under Order VI, Rule 7 unless amendment of the pleadings is sought for under Order VI, Rule 17. Therefore, if without seeking such amendment, new and inconsistent pleas are taken or inconsistent allegations are made, the additional written statement will not be permitted to be filed. Rather the defendant will be compelled to seek for amendments in the pleadings. The other category of cases is: Girdharilal v. Krishan Datt (AIR 1960 Punj 575); New Bank of India Ltd. v. Smt. Raj Rani (AIR 1966 Punj 162) and Lachhmi Devi v. Darshan Singh Kochher (Civil Suit No. 12 of 1969 of this Court, decided by C. R. Thakur, J., on 27-11-1972).

10. We shall take up the second category first and we refer to Girdharilal v. Krishan Datt (supra). In this case, the plaintiff sought for the relief of possession in the plaint and asked for the amendment of the plaint to that effect. Under Order VIII, Rule 9 the court directed for additional written statement In the additional written statement a new plea was taken that the property was thrown in the common stock and hence assumed the character of undivided Hindu property. It was contended on behalf of the plaintiff that the defendant could not raise new pleas, or inconsistent pleas without express permission of the court as laid down in Order VI, Rule 16, The learned Judge held:--

'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 Civil P. C. 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 are 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.'

The learned Judge went on to observe further:--

'The sole object of the pleadings is to see where the parties differ, and that each side may be fully alive to the questions that are about to be argued, so that they may adduce all appropriate evidence; and if this object has been achieved, then to rule out the amended pleading would tend to defeat, instead of promoting, the cause of justice for serving which alone the rules of procedure exist.'

11. As evident from the above noted observation, the learned Judge was ledaway by the consideration that rules of procedure are handmaids of justice, and since he was considering the amendment of written statement, he was inclined to hold that in defence all plausible pleas can be taken by a defendant. It was held that once the court directed the additional written statement to be filed, impliedly the court permitted the defendant to take up even inconsistent pleas without seeking for an amendment under Order VI, Rule 17. In the subsequent decision New Bank of India Ltd. v. Smt. Raj Rani (supra) the learned Judge, who spoke for the Bench in Girdharilal (supra), was the Presiding Judge and once again he reiterated his previous view with slight modification that one has to see the order granting amendment of the plaint and permission for the filing of additional written statement. If the said order is unrestricted and merely says that additional written statement be filed, it would mean that the defendant gets the unrestricted right to take up any pleas he prefers, may be inconsistent with the original pleas or may be new pleas or may consist of new grounds.

In that case, the plaintiff sought for the amendment because a certain fixed deposit receipt had matured and he wanted a decree for that amount as well. The court asked for additional written statement. New pleas were taken and it was contended that without amendment in the pleadings, such new pleas could not be raised. The learned Judge upheld his previous view, and held that the defendant got untrammelled right to take up any pleas he preferred, and the order under Rule 9 of Order VIII was required to be seen and if there was nothing to indicate in that order that pleadings were restricted, new pleas or even inconsistent pleas could be taken up by the defendant. These two cases were followed in Lachhmi Devi (supra) and the learned Judge ofthis Court while allowing the plaintiff to amend the plaint because a certain party was to be added, asked for additional written statement. New and inconsistent pleas were taken in the additional written statement and the same were allowed by the court. Thus the above noted three cases took the view contrary to that in Tek Chand Chitkara v. Union of India (supra).

12. As we have already pointed out, Order VI deals with pleadings generally and the provisions of that order do apply to plaint as well as to written statement. Under Order VIII, Rule 9, there is a provision for subsequent written statement. Nevertheless Rule 9, Order VIII has to stand with Rule 7 and 17 of Order VI. Under Rule 9, Order VIII, additional written statement can be permitted to be filed But that does not mean that Rule 7 and 17 of Order VI have been given a go-bye. If such additional written statement contains any departure in the pleadings within the meaning of Order VI, Rule 7, in our opinion Rule 17, Order VI will be effective and a proper amendment of the pleadings will have to be asked for. Without the court applying its mind as to whether there has been really a departure in the pleadings and as to whether the amendments should be permitted for the purpose of determining the real question in controversy, in OUT opinion, the mere fact that additional written statement has been permitted to be filed under Rule 9 of Order VIII will not give a right to the defendant to raise new or inconsistent pleas, or to make allegation contrary to the facts alleged in the previous pleadings.

The observations, of the learned Judge in Girdharilal (supra) and New Bank of India Ltd. (supra) depending upon the nature and application of the law of procedure, in our opinion will be of no avail, the reason being that it would by itself be a rule of law as to whether Rule 7 and 17 of Order VI are not required to be complied with and merely because Rule 9 of Order VIII has been observed, a departure would be permitted in the pleadings without seeking for an amendment under Rule 17 of Order VI. That would not be a question of procedure, although while allowing or disallowing the amendment the court can always take a liberal view and may even permit the defendant to raise whatever defence he choses to take in his favour.

Therefore, in our opinion, it will be a question of the application of the law pointed out in Rule 7 and 17 of Order VI and not a pure question of procedure to be decided for allowing a departure in the pleadings under a pretence that additional written statement is permitted to be filed under Rule 9 of Order VIII. With respects to the opinion expressed in the above-noted two Punjab cases we have further to observe that the language used in the order allowing the amendment in the plaint or allowing the additional written statement to be filed would be of no consequence. It is obviously correct that under Order VIII, Rule 9 the Court would allow the subsequent written statement merely because the plaint was amended. While making that order the court is not expected to be aware of the pleas which may be taken while filing such additional written statement. It is only when the additional written statement is filed that the court will become conversant with the pleas taken in that additional written statement. At that point of time Rule 7 and 17 of Order VI will come into play and in case in the opinion of the court the additional written statement is not confined to the amendments sought for in the plaint, the defendant will be compelled to file an application for amendment of the pleadings under Rule 17 of Order VI. Thereafter the court will examine the entire matter, and if the amendments sought for were necessary for determining the real question in controversy the court may or may not allow the amendments. In fact, the mere direction by the court that additional written statement be filed, would convey only one meaning that the additional written statement hereinafter to be filed has to confine to the amendments already sought for by the plaintiff. If the court prejudges the issues and permits additional pleas to be taken by the defendant, in a particular case it may elaborate its order seeking for the additional written statement by making pertinent observations. But, as we have stated above, we cannot conceive of a case in which the court will be in a position to prejudge the issues and make an elaboration in its order to enable new pleas in additional written statement.

At any rate, in the case before us, the orders were simple under Order VIII, Rule 9 permitting additional written statements to be filed. After that stage the court was not aware as to what sortof pleas were likely to be raised in the additional written statements. The question arose at the time when the additional written statements were filed and the court found that there was departure in the pleadings and rightly asked for the amendment under Rule 17 of Order VI.

13. The learned counsel also referred to us Order XII Rule 6 which deals with admissions made in the pleadings and said that a right accrues to the plaintiff to ask for judgment on such admissions. If a departure in the pleadings is permitted in a situation of like nature, perhaps that right for a judgment may be lost. It was, therefore, rightly contended that unless specific permission of the court was taken for amendments in the pleadings under Rule 17 of Order VI, the mere order for the filing of additional written statement under Order VIII, Rule 9 will not enable the defendant to commit a departure in his previous pleadings. It is, of course, evident that such an additional written statement will enable the defendant to take up additional pleas in respect of the amendments sought for in the plaint. The dispute arises only when he takes up new pleas or inconsistent pleas with reference to the original pleas taken up in the written statement. In our opinion, amendments will have to be sought for under Rule 17 of Order VI. Thus we are inclined to accept the view expressed by this Court in Dittu Ram v. Amar Chand (supra) and Tek Chand Chitkara v. Union of India (supra), and we respectfully differ from the view taken by this Court in Lachhmi Devi (supra).

14. Now we shall proceed to take up the individual cases.

15. In C. R. No. 2 of 1976, we uphold the order of the learned Subordinate Judge and in case the defendant wants to raise new pleas of defence he may apply for proper amendment under Rule 17 of Order VI. As regards the question of payment of Rs. 100/- as costs, the learned counsel appearing for the plaintiff before us has conceded that the amount of costs shall be paid to the petitioner.

16. In C. R. No. 40 of 1976, again the order of the learned Subordinate Judge is confirmed and the defendant can seek amendment of the written statement under Rule 17 of Order VI.

17. In C. R. No. 33 of 1974, there is some difficulty inasmuch as the learned Subordinate Judge has also given a finding that no new plea has been taken and further observed that at the most the pleas taken were by way of clarification in the written statement. This part of the finding of the learned Subordinate Judge cannot be sustained because he has not pointed out anywhere in what manner the clarification is made nor the nature of pleas taken, so that it could be held if these were new pleas or the old pleas explained in a different manner. In the grounds of revision as well, the petitioner has not pointed out in what manner the pleas could be considered to be new ones or inconsistent with the pleas previously taken. In such a situation we do not give any finding and having found that the decision is without the support of any evidence, we have to set aside that finding, and while sending back this case to the learned Subordinate Judge we hold that he has to apply his mind afresh and give his finding as to whether the pleas by way of defence are new pleas or by way of clarification of the original pleas.

We have, of course, to set aside the finding of the learned Subordinate Judge whereby he has refused to restrict the defendant from taking up new pleas while filing the additional written statement. As per our decision above, such new or inconsistent pleas can only be taken under a proper application for amendment under Rule 17, Order VI. Hence we set aside the judgment of the learned Subordinate Judge in this revision. The case is remitted back to him for proceeding in accordance with law.

18. In all the three revisions, we further direct that the parties shall bear their own costs.


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