Himachal Pradesh High Court
Arun Duggal vs Ajay Pratap Singh & Others on 30 March, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP No. 313 of 2015 in C.S. No. 40 of 2006.
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Decided on: 30th March, 2016.
Arun Duggal .......Plaintiff Versus Ajay Pratap Singh & Others ......Defendants.
of Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 Yes.
rt For the Plaintiff : Mr. Neeraj Gupta, Advocate.
For the defendants : Mr. Hemant Sharma, Advocate vice Mr. Aman Sood, Advocate for defendant No.1.
Mr. Narender Sharma, Advocate for defendant No.2.
Ms. Devyani Sharma, Advocate for defendants No.3 and 4.
Dharam Chand Chaudhary, J. (oral).
This application has been filed with the following prayers:-
" It is, therefore, prayed that in the interest of justice application may be allowed 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 2
and written statement filed by defendant No.2 may be ordered to be taken off the record or in the alternative, the unnecessary .
pleadings incorporated by defendant-Non applicant No.2 in his written statement to the amended plaint as detailed above may be ordered to be struck off."
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2. The facts giving rise to file this application in a nut-shell are that non-applicant/defendant No.2 Uday rt Pratap Singh in the written statement filed to the original plaint has admitted the claim of the applicant-plaintiff in toto. No doubt, at a later stage, he filed an application OMP No.4008 of 2013 with a prayer to withdraw the written statement, he already filed. The application was, however, dismissed vide order dated 24.3.2014. During the pendency of the suit in this Court defendants No.3 and 4 have filed suit for seeking declaration that they have become owners of the suit land by virtue of the Will executed in their favour by their predecessor-in-interest Shri Raja Ram Pratap Singh.
Non-applicants/respondents No.1 and 2 were defendants in that suit.
::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 33. The complaint is that non-applicants/ defendants No.3 and 4 obtained the decree in that suit in .
collusion with defendants No.1 and 2. Anyhow, the plaintiffs in that suit had filed application OMP No.4009 of 2013 for their impleadment as party in the present suit. The application filed by them has already been allowed vide of order dated 24.3.2014 and they are now defendants No.3 and 4 on the record of the present suit.
rt In view of the addition of defendants No.3 and 4 in the suit, the application for amendment of the plaint, OMP No.227 of 2014 came to be filed. The said application has also been allowed vide order dated 9.7.2014 and the amended plaint taken on record. Now non-applicant/defendant No.2 has filed written statement to the amended plaint. He has not only replied the pleadings incorporated in the plaint by way of amendment, but also recasted the original written statement. The complaint, therefore, is that non-
applicant/defendant No.1 is not entitled to recast the written statement he already filed and at the most he is entitled to reply the amended pleadings in the plaint.
::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 44. In reply to the plaint, the response of non-
applicant/defendant No.2 is that in view of the subsequent .
developments i.e. defendants No.3 and 4 have been declared owners during the pendency of the suit, the applicant-plaintiff has no right to claim title and interest in the suit property nor any question of specific performance of of the agreement arises. It is also averred that he has right to defend and submit his response to the amended plaint.
rt The allegations that he has admitted the claim of the plaintiff in the original written statement and that an application filed to withdraw the same stands dismissed, however, have not been disputed.
5. Non-applicants/defendants No.3 and 4 in reply to the application has submitted that in view of the subsequent development having taken place, they are entitled to defend themselves in the suit.
6. Mr. Neeraj Gupta, Advocate, learned counsel representing the plaintiff-applicant has very fairly submitted that defendants No.1, 3 and 4 can only contest the suit and as regards defendant No.2, in view of his ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 5 admission in reply to the original written statement, he is not entitled to file written statement to the amended plaint or .
at the most he can reply the averments to be incorporated in the plaint by way of amendment.
7. On analyzing the rival submissions and taking into consideration the settled legal principles, a party-
of defendant to a lis has a right to file written statement, however, the same should be confined only to the rt averments came to be incorporated by way of amendment in the plaint and not to recast the written statement filed originally. I am drawing support in this regard from the judgment of this Court in Tek Chand Chitkara versus Union of India & Others, 1974, ILR, HP, 616.
Relevant portion of the judgment reads as follows:-
"4. On the first contention, it seems to me that the plaintiff is right. There can be no doubt that if a plaintiff is allowed to amend his plaint a defendant is entitled to amend his written statement. But the scope of amendment available to the defendant must relate to the amendment effected in the plaint. The occasion for permitting the ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 6 defendant to amend the written statement is provided by the amendment of the plaint, and the whole purpose of allowing the .
defendant to amend the written statement is to afford him an opportunity to set out his defence in reply to the amended pleadings introduced in the plaint. It must be remembered that after the plaint is filed and of the defendants files his written statement in defence he exhausts his right to do so, and rt he cannot subsequently amend the written statement except by leave of the Court. To permit the defendant to do so otherwise could result in defeating Order 8 Rule 9 of the Code. Now, it is one thing to amend the written statement in reply to in reply to an amendment of the plaint; it is quit another thing to amend the written statement by introduce entirely fresh pleadings not warranted by the amendment in the plaint.
To amend the written statement in the latter case the defendant must satisfy requirements which proceed beyond those arising upon a mere amendment of the plaint. I am in agreement with the view taken in Dillu Ram vs. Amar Chand. It may be mentioned that ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 7 the Punjab High Court has taken a contrary view in GirdhariLal versus Krishan Datt. Subsequently the view taken by that court .
was explained in New Bank of India Ltd. versus Smt. Raj Rani and the law was stated thus:
"On behalf of the respondent it has been urged with certain amount of of force that in the case in hand it must be deemed that the Court below had not rt re-opened the entire trial but had merely directed the plaintiff to add to the relief clause an additional relief and that the defendants were also accordingly permitted merely to answer to this additional plea and not to put in an absolutely fresh written statement. Whether or not the Court below intended to adopt this procedure is far from obvious and its order is certainly not clear and explicit in this respect. I can see that the amendment in the plaint is of a formal nature, but in the absence of any restriction placed by the Court below, I am unable, as at present advised, to ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 8 hold that as a matter of law the defendant can be debarred from putting in a fresh written statement to a .
fresh plaint foiled in pursuance of an unqualified order."
There may be a case where subsequent to the amendment of the plaint a defendant of may make out a case before the court for amending his written statement so as to enable him not only to introduce pleas in rt reply to the amendment in the plaint but also to introduce fresh pleas. So far as such fresh pleas are concerned, the court will consider, independently of the amendment effected in the plaint, whether the defendant has made out a case for introducing such pleas in the written statement. The circumstance that the plaint has been amended is irrelevant, and the court will proceed to consider the prayer for introducing such pleas in the same way as it would an application for permission to amend the written statement had the plaint remained unaltered.
5. In my opinion, the learned Senior Subordinate Judge committed a jurisdictional ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 9 error in permitting the defendants to amend their written statement by introducing pleadings not necessitated by the .
amendment made in the plaint."
8. Similar is the view of the matter taken again by a Division Bench of this Court in Swaran Singh & Others of versus Radha Kishan & Others, AIR 1980, HP, 8.
"12. As we have already pointed out, Order VI deals with pleadings generally and the rt 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 Rr.7 and 17 of O.VI. Under Rule 9, Order VIII, additional written statement can be permitted to be filed. But that does not mean that Rr.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 O.VI, Rule 7, in our opinion Rule 17, O.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 ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 10 departure in the pleadings and as to whether the amendments should be permitted for the purpose of determining the real question in .
controversy, in our opinion the mere fact that additional written statement has been permitted to filed under Rule 9 of Order VIII will not give a right to the defendant to raise new or inconsistent pleas, or to make of allegation contrary to the facts alleged in the previous pleadings.
rt 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 Rr.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 O.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 ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 11 whatever defence he chooses to take in his favour.
Therefore, in our opinion, it will be a .
question of the application of the law pointed out in Rr.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 of statement is permitted to be filed under Rule
9 of O. VIII. With respects to the opinion rt 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 O. VIII, R. 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 ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 12 statement. At that point of time Rr. 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 of court will examine the entire matter, and if the amendments sought for were necessary rt 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. It 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 ::: Downloaded on - 15/04/2017 20:01:00 :::HCHP 13 issues and make an elaboration in its order to enable new pleas in additional written statement.
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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 sort of pleas were likely to of be raised in the additional written statements. The question arose at the time when the rt additional written statements were filed and the court found that there was departure in the pleadings and rightly asked for the amendment under R.14 of O.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 O.VI, the mere order for the filing of additional written ::: Downloaded on - 15/04/2017 20:01:01 :::HCHP 14 statement under O.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 of with reference to the original pleas taken up in the written statement. In our opinion, rt 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)."
9. It is thus seen that the point in issue in this application is squarely covered by the judgments of this Court referred to hereinabove. The application is accordingly allowed.
The written statement filed by non-applicant/defendant No.2 to the amended plaint is hereby ordered to be taken off the record, of course with liberty reserved to him to file written statement only to those pleadings came to be ::: Downloaded on - 15/04/2017 20:01:01 :::HCHP 15 incorporated by way of amendment without recasting the written statement he filed to the suit originally. The .
application is accordingly disposed of.
(Dharam Chand Chaudhary),
March 30, 2016 (ps) Judge
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