Parayakunnil Johan Mathai vs Rabi Ranjan Sahoo And Others

Dr. A.K.Rath, J

By this petition under Article 227 of the Constitution, challenge is made to the order dated 7.4.2018, passed by the learned Civil Judge (Senior

Division), Talcher, in C.S. No.38 of 2012, whereby and whereunder, learned trial court has rejected the application of the defendant no.1-petitioner

under Order 8 Rule 9 CPC to accept the additional written statement.

Plaintiffs-opposite party nos.1 and 2 instituted the suit for declaration of title, eviction of defendant no.1 from the suit land and permanent injunction.

The defendant no.1 entered contest and filed written statement denying the assertions made in the plaint. While matter stood thus, defendant no.1 filed

an application under Order 8 Rule 9 CPC for leave of the court to accept the additional written statement. It is stated that the written statement was

filed on 06.03.2014, bereft of some material facts. The same have vital bearing on the suit. After death of the previous counsel, another counsel was

engaged. It is found that some vital facts have not been pleaded. Learned trial court rejected the same.

Heard Mr. Niranjan Singh-1, learned counsel for the petitioner.

Mr. Singh, learned counsel for the petitioner submits that the provisions contained in Order 8 Rule 9 CPC shall be construed liberally. Though the

learned trial court came to the conclusion that the provisions contained in Order 8 Rule 9 CPC shall be construed liberally, but then rejected the

application of the petitioner on untenable and unsupportable grounds. No new ground is taken in the additional written statement. The foundational

facts exist. The additional written statement is not a departure from the written statement.

Order 8 Rule 9 CPC provides that :

“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 require 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.â€​

Order 8 Rule 9 CPC was the subject-matter of interpretation in the case of M/s. Gannon Dunkerley & Co. Ltd. represented through its Constituted

Attorney Sri Sridhar Dubey Vrs. Steel Authority of India Ltd. Rourkela Steel Plaint, Rourkela, 76 (1993) C.L.T. 655. This Court held:

“6. Order 8, Rule 9 of the Code lays down an important rule of pleading that no pleading subsequent to the written statement by a defendant other than by way of

defence to a set off shall be presented except by leave of the Court. The rule requires leave of the Court before any party can make a further pleading after written

statement has been filed. Where a defendant intends to file additional written statement, he must file an application showing the circumstances as to why he failed to

raise the plea in the original written statement, and the other party must be given opportunity to meet the motion. In considering whether leave to file an additional

written statement, should be granted or not, the delay that has taken place in raising the contention raised in the additional written statement and the reason why

those contentions were not raised before have to be considered. Though the Rule invests the court with wide discretion and enables it to accept written statement

filed subsequently, same is not to be accepted where a new case or facts inconsistent with the original written statement are sought to be brought on record. In this

context, reference to provisions of Order 6, Rule 7 of the Code is necessary. The said rule stipulates that a new ground of claim or allegation of fact inconsistent with

the previous pleading of the party cannot be accepted except by way of amendment. Thus, Order 6, Rule 7 of the Code is subject to the Order 6, Rule 17 of the Code

under which the amendments are made. Therefore, provisions of Order 6, Rule 17 of the Code are to be kept in mind while accepting fresh pleadings raising new

ground of claim or containing allegations of fact inconsistent with the previous pleadings of the party. A departure takes place when in any pleadings the party

deserts ground that he had taken in his previous pleading and resorts to another and different ground. The object of Order 6, Rule 7 of the Code is to prevent such a

departure.â€​

In P.A. Jayalakshmi Vrs. H.Saradha & Ors, (2009) 14 SCC 525, the apex Court held that ordinarily at a belated stage, leave for filing additional

written statement is not usually granted. The court should be liberal in allowing applications for leave to amend pleadings. But then, court must bear in

mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17

being one of them.

Reverting to the facts of this case and keeping in view the law enunciated above, this Court finds that defendant no.1 has filed an application

seeking leave to file additional written statement. Trial has commenced. While considering the application under Order 8 Rule 9 CPC, the Court has to

bear in mind the statutory limitations contained in proviso to Order 6 Rule 17 CPC. The petition for leave to file additional written statement has been

filed to circumvent the proviso to Order 6 Rule 17 CPC. The provision contained in Order 6 Rule 17 CPC cannot be circumvented by filing application

under Order 8 Rule 9 CPC. Learned trial court held that basing on the pleading, issues have been framed. Three witnesses have been examined on

behalf of plaintiff. Additional written statement is a significant departure from the written statement. There will be no end of the litigation as with

every appointment of a counsel, a pleading will undergo change and litigation shall continue till eternity. There is no perversity or illegality in the said

finding warranting interference of this Court under Article 227 of the Constitution.

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In view of the foregoing discussions, the petition is dismissed. There shall be no order as to costs.

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