M. Palaniappan vs Nachimuthu and another

S.S. Subramani, J.—First defendant in O.S. No. 181 of 1989 on the file of Sub Court, Sankari is the revision petitioner herein. Suit filed by

plaintiff was one of specific performance of agreement for sale alleged to have been executed by petitioner in his favour. In para 3 of the plaint, it is

alleged that the scheduled property absolutely belongs to first defendant.

In the written statement filed by the petitioner, he denied the execution of agreement.

While so, first petitioner''s son moved an application to get himself impleaded as additional party to the suit, on the ground that plaint property is

joint family property and first defendant has no right to execute the agreement.

That application was dismissed by lower Court against which a revision was taken before this Court in C.R.P. No. 13 of 1994. Justice M.

Srinivasan (as his Lordship then was) allowed the revision and directed the son also to be impleaded as party to the suit. Pursuant to the order,

second defendant was brought on record.

Consequent to his impleadment as additional second defendant, plaintiff amended the plaint by incorporating para 9(a). In that additional

paragraph, plaintiff alleged that second defendant has no right, title or interest over suit property and the claim that the same is family property is

not true.

Reading of entire para 9(a) shows that the only contention that was raised is that second defendant is not having right over the property. That

amendment application was allowed and petitioner herein was allowed to file additional written statement to the ""amended plaint"".

First defendant filed written statement containing 15 typed pages and additional written statement is really substitution of earlier written

statement. Each and every paragraph of the plaint is answered in the additional written statement.

On filing additional written statement, plaintiff moved I.A. 129 of 1996 either to strike off or delete the written statement on the ground that the

additional written statement is not confined to the second plaint but it is really substitution of earlier written statement.

The same was seriously opposed by petitioner and by the impugned order, lower Court held that first defendant has really filed new written

statement in the place of earlier written statement and the same cannot be accepted. The petition was allowed and the same is challenged in this

revision petition.

After hearing both sides, I do not think that any interference is called for in this revision petition.

As early as in Kallampudi Narayanappa Vs. Kaligotla Suryanarayana and Others, it is held thus,

.....There is, however, no provision in the CPC to enable the Court to permit the substitution in to of one written statement for another already

filed......

On going by the new written statement-petitioner has not confined himself to the amended plaint. It must also be noted that amendment was

necessitated only because second defendant got himself impleaded against the wishes of plaintiff. The allegation was only against second defendant

and no relief was also asked against second defendant. In such cases, re-writing entire written statement is not proper.

In AIR 1978 Gujarat 94. (T.B. Dayashankar v. M.N. Kaluram), this question was considered and the same read thus.

......The very genesis of the law of pleadings is that the Court and the respective parties should have full knowledge of the case of both the parties

so that the subsequent trial may proceed in that well defined channel and no prejudice is caused to either of the sides by rambling and meandering

course of trial. This very principle is laid down in O.8. R. 9 of the Civil P.C. which reads as follows: -

Rule 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.......

This legislative mandate has been laid down in an imperative language which is too clear to call for any aid of canons of construction and the

purpose underlying is that the parties must know as to what is the case of the other side which it is called upon to meet.

The same conclusion can be had also from the equally mandatory provisions of O. 6, R. 7 of the CPC which reads as under:

Rule 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.

Order 6 of the Civil P.C. deals generally with the pleadings of both the plaintiff and the defendant and the legislative mandate quoted above is

applicable both to the plaint and to the written statement. It is, therefore, clear that what has been stated once as an allegation of fact or as a

ground of a claim or an attack has got to be stuck to by the parties and any change in that stand can be taken note of by the Court only by way of

amendment which is permissible only under the established principles of law.

In para 6 of the judgment, learned Judge further held thus,

.....In my view, a defendant has got a right, when he is permitted to file his written statement to the amended plaint, to have his say only with

respect to the matter introduced by amendment and no further. Order 8, Rule 9 of the CPC in its latter part, no doubt, confers discretion on the

Court to require a written statement or additional written statement from any of the parties and fix a time for presenting the same. It is already

implicit in such powers that they are to be exercised ex debito justitiae. The Court exercising its discretionary powers does so only to advance the

cause of justice and such a power, assuming that it was exercised in this case, did not permit the defendant to change the whole front and raise a

contention which was not consistent with the earlier stand taken by him. The fact that the Court served the defendant with a copy of the amended

plaint and gave him time to file additional written statement does not mean that the Court had given him liberty to treat the subject matter afresh in

the manner he liked, ignoring the earlier written statement filed by him. As stated above, the Court''s permission unless so expressed or otherwise

shown, must be understood to have given him permission to file an additional written statement in respect of the amended portion and no

further......

(emphasis supplied)

Law is well settled that after filing of written statement by the defendant, the additional written statement that may be filed by defendant after

the amendment of the plaint should be confined and limited to the amended portion of the plaint only. He cannot put forward pleas which are not in

answer to the fresh matter introduced by the amendment of plaint and are inconsistent with the pleas previously put forward. A defendant also

cannot I ignore his earlier written statement while filing written statement to amended plaint. He has a right to have his say only with respect to the

matter introduced by amendment and no more.

Since lower Court has followed the correct legal principle. I do not find any ground is made out for interference in this revision. In the result,

the revision petition is dismissed. No costs. Consequently, C.M.P. No. 7914 of 1998 is also dismissed.