Baldev Singh vs Sarabjit Kaur and Others

Alok Singh, J.—Present petition is filed challenging the order dated 29.4.2010 passed by Civil Judge (Jr. Divn.) Dhuri whereby the

Defendant was directed to file the additional written statement confining to the amended plaint.

The brief facts of the present case are that Plaintiff has filed suit for declaration seeking declaration to the effect that the Plaintiff and Defendant

No. 6 are the co-owners and in joint possession of the suit property to the extent of half share. Defendant-Petitioner has filed written statement

against the plaint. Thereafter, Plaintiff has moved an application seeking amendment in the plaint which was allowed by learned trial Court vide

order dated 26.10.2009 permitting the Defendant-Petitioner to file additional written statement. Thereafter, Defendant-Petitioner filed written

statement taking all the available pleas. Plaintiffs-Respondents moved an application before the learned trial Court saying Defendants No. 1 to 4

can not file additional written statement taking new/additional pleas. Application moved by the Plaintiff was allowed by the impugned order.

I have heard learned Counsel for the parties and perused the record.

The question involved in the present case is - As to whether Defendant is entitled to file additional written statement taking all the additional and

new pleas available which were not taken in the original written statement after the amendment in the plaint?

Learned Counsel for the Defendant-Petitioner while placing reliance on the judgment of this Court in the matter of Sheo Ram v. Madhu Ram

and Ors. (2009-2) 154 PLR 132 has argued that Defendant has every right to file additional written statement after amendment in the plaint taking

all the pleas available to the Defendant although not taken previously in the main written statement.

Learned Counsel appearing for the Plaintiffs (Respondents herein) has vehemently argued that in view of Order 6 Rule 7 and Order 8 Rule 9

CPC no subsequent pleading can be allowed to be filed after the filing of written statement, without leave of the Court. Learned Counsel for the

Plaintiffs (Respondents herein) further argued that after the amendment in the plaint additional written statement should be confined to the amended

portion of the plaint and Defendant can not be permitted to take additional pleas/defences which were not originally taken in the main written

statement.

Order 6 Rule 7 and Order 8 and Rule 9 reads as under:

Departure.- 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.

Subsequent pleadings - No pleading subsequent to the written statement of a Defendant other than by way of defence to set-off or counter-

claim 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 required a

written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.

From the perusal of Order 6, Rule 7 Code of Civil Procedure, in the opinion of this Court no new pleading can be raised which are inconsistent

with the previous pleadings of the party. This Court is of the view if Plaintiffs carries out the amendment in the plaint then Defendant is entitled to

file additional written statement taking all the pleas available which are not inconsistent to the previous pleas taken by the Defendant.

The view of this Court is fortified by the judgment of this Court in the matter of Sheo Ram''s case (supra). Learned Single Judge of this Court in

the matter of Sheo Ram''s case (supra) in paragraph No. 9 has observed as under:

In Jia Lal and Anr. v. Savitri Devi and Anr. (1995-1) 109 PLR 742 this Court has held that if the Plaintiff is allowed to amend the plaint, the

Defendant has a corresponding right to file the amended written statement to the amended plaint. In Lal Chand Balwant Rai and Ors. v. M/s

Harnarain Dass Gharsi Ram and Anr. (1983) 85 PLR 444, this Court has held that in the written statement filed in pursuance to the amended

plaint, the Defendant is entitled to take certain pleas which were not taken earlier and there is no such bar against him to take any other additional

plea. In Jagdish Parshad v. Dhansi Ram (Decd.) and Ors. (1977) 79 PLR 670, this Court has held that once an amended plaint is filed, a legal

right accrues to the opposite party to file fresh written statement wherein new objections can be taken in the absence of any exceptional

circumstances or any statutory bar or special order of the Court at the time of allowing the amendment.

Learned Counsel for the Respondents-Plaintiffs has placed reliance on the judgment of Orissa High Court in the matter of Gannon Dunkerley

and Co. Ltd. Vs. Steel Authority of India Ltd., Rourkela, , Karnataka High Court in the matter of Mohammed Ali and Anr. v. Smt. Khutejatul

Kubra and Ors. 2002 (2) CCC 274 Kar.

Hon''ble Single Judge of Orissa High Court in the matter of M/s. Gannon Dunkerley & Company Ltd. ''s case (supra) was dealing with the

eventuality where Defendant wanted to file additional written statement without their being any amendment in the plaint. My lord justice Arijit

Pasayat as the lordship then was, has interpreted the provision of Order 8 Rule 9 CPC and has observed that if Defendant wants to file additional

pleading then he has to take leave under Order 8 Rule 9 Code of Civil Procedure. However, in the present case Defendant is not seeking any

permission to file additional written statement rather additional written statement was filed after the amendment carried out by the Plaintiff in the

plaint.

Learned Single Judge of Karnataka High Court in the matter of Mohammed Ali and Anr. case (supra) has held that new claims and

inconsistent pleas can not be raised by way of additional written statement after the amendment in the plaint.

In the opinion of this Court, if Plaintiffs are permitted to carry out amendment in the plaint then Defendant has every right to file additional

written statement and in such eventuality Defendant is permitted to take all the legal pleas available to him which were not previously taken by him.

However, Defendant can not take those additional pleas in the additional written statement which are inconsistent to the pleas already taken in the

original written statement.

In the present case, I am unable to find out that pleas being taken by the Defendant in the additional written statement are in any way

inconsistent to the pleas already taken in the original written statement. Hence, order impugned can not be sustained in the eyes of law.

Petition is allowed.

Impugned order is set aside.