Gujarat High Court
Asit Prabhudas Patel For Self As Well As ... vs Amit Prabhudas Patel For Self As Well As ... on 13 July, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13063 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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ASIT PRABHUDAS PATEL FOR SELF AS WELL AS MANAGER
(KARTA)
Versus
AMIT PRABHUDAS PATEL FOR SELF AS WELL AS MANAGER
(KARTA) & 1 other(s)
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Appearance:
MR UDAYAN P VYAS(1302) for the Petitioner(s) No. 1
MR TUSHAR N VYAS(3161) for the Respondent(s) No. 2
SHIVANG P JANI(8285) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 13/07/2022
ORAL JUDGMENT
Rule. Mr. Shivang P. Jani, learned advocate for respondent No. 1 waives service of notice of rule. Mr. Tushar N. Page 1 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 Vyas, learned advocate for respondent No. 2 waives service of notice of rule.
1. By way of this petition, petitioner - original defendant No. 2, invoking jurisdiction under Article 227 of the Constitution of India, seeks to challenge an order dated 09.01.2012 passed below Exhibit-16 in Regular Civil Suit No. 258/2011 (Old Suit being Regular Civil Suit No. 69 of 2010), whereby an application made to permit him to produce additional written statement as subsequent pleadings to the plaint as also the injunction application, came to be rejected. From the papers annexed with the petition, it appears that respondent No. 1 - plaintiff, filed a suit seeking declaration that family arrangement made between the parties on 29.09.2010 by way of an agreement, is binding to all of them and the defendants have no right or authority to act against the conditions mentioned therein, either by themselves or through their agents, assignees or any other persons, to create charge or sell it off and injuncting them for the same. From the pleadings, it appears that the parties to the suit are brothers and the mother of them, who is also joined as defendant in the suit. As coming out from the papers, there appears other suits filed in between them with regard to the aforesaid agreement of family arrangement and its fallout.
2. It appears that this suit in the present case was also Page 2 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 ordered to be clubbed together with the other suits being Special Civil Suit Nos. 45 of 2011, 46 of 2011 and 47 of 2011 for the joint trial of all common issues in dispute.
3. Mr. Udayan P. Vyas, learned advocate for the petitioner submitted that after the service of the summons, vide Exhibit-8 on 06.12.2010, the petitioner - defendant No. 2 filed written statement to the suit as also the injunction application mentioning therein that today i.e. on 06.12.2010, as per the settlement arrived between the parties, they pray for passing a decree in the suit and injunction also, as per the settlement deed which is separately produced vide Exhibit-9 along with their written statement on that very day. However, in the said written statement, it is mentioned that the suit filed by the plaintiff is correct and they admit the claim made therein. 3.1 On such written statement being filed along with the agreement of settlement, it was kept for hearing vide order passed below Exhibit-9 before acting upon the said consent agreement. However, after hearing the parties, considering the agreement between them and the prayer made in the suit, vide order dated 15.01.2011, the concerned Judge refused to act on the consent agreement on the ground that the agreement arrived between the parties claiming independent ownership and possession of the properties described therein is contrary to Page 3 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 what is prayed in the plaint and with a view to find out, other heirs of Dr. Prabhudas Patel are there or not, which cannot be concluded in absence of pedigree. Therefore, learned Judge had rejected the same as it cannot be acted upon without recording the evidence, directing the parties to lead the same before the Court.
3.2 On 05.03.2011, petitioner - defendant No. 2 vide pursis Exhibit-15 sought to withdraw the written statement Exhibit-8 as also consent deed Exhibit 9 as signature of the petitioner - defendant No. 2 in those documents were obtained on misrepresentation, practicing fraud, which petitioner - defendant No. 2 could notice, and therefore, he requested that in detail he would produce the written statement to the plaint as also the injunction application. In short, by that pursis Exhibit-15, written statement showing the consent to the plaint as also the consent deed came to be withdrawn by him.
3.3 Thereafter, vide Exhibit-16 application, the petitioner - defendant No. 2 sought permission from the Court to produce additional written statement to the suit as also the injunction application as subsequent pleadings in view of Order VIII Rule 9 as also Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). While seeking permission vide Exhibit-16, it is submitted that so called written statement Exhibit-8 was an outcome of a fraud practiced upon him by the Page 4 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 plaintiff and as a part of consent terms, executed on that day between them but since the said fraud practiced upon him came to be exposed, the written statement based on such consent and such consent terms were declared to be withdrawn vide Exhibit- 15 pursis, which came to be recorded by the Court. The application Exhibit-16 seeking permission to file additional written statement by way of subsequent pleadings was fixed for hearing and after hearing the parties, the learned Judge refused the said permission on the ground that such permission would permit him to plead inconsistent pleas before the Court. At the same time, it would be premature to conclude for the present that the said written statement Exhibit-8 was an outcome of fraud practiced upon him or not. Though it is concluded by the trial Judge that under Order VIII Rule 9 of "the Code", Court can use discretion to permit the same but in view of a decision rendered in the case of Thakkar Babulal Dayashanker v. Mehta Natwarlal Kaluram & Anr., reported in (1977) GLR 388 as also judgment in the case of Gandeti Suryakantham v. Gandeti Subba Rao & Ors., reported in AIR 2004 AP 533, learned Judge concluded that he cannot use such discretion to permit inconsistent defense by way of additional written statement as subsequent pleadings. Thus, the said application Exhibt-16 came to be rejected, which is under challenge before this Court.
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C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 3.4 Mr. Udayan P. Vyas, learned advocate for the petitioner, submitted that since the written statement Exhibit-8 was filed pursuant to consent agreement, which was arrived on that very day, a written statement was filed declaring no contest to the suit and admitting the contents thereof. However, before such consent terms are acted upon and any order is passed pursuant to the aforesaid consent, the petitioner withdrew, not only the written statement but also the consent terms, and therefore, according to his submission, it cannot be termed as written statement at all. However, he has further submitted that even if it is presumed to be a written statement, the Court can certainly, exercising discretion under Order VIII Rule 9 of "the Code", permitting the petitioner to plead inconsistent pleas in his written statement.
3.5 Relying on a decision in the case of Baldev Singh & Ors. v. Manohar Singh & Anr., reported in AIR 2006 SC 2832, it is submitted that as held in it, more particularly in para 15 and 16, inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. It is further submitted that, amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle.
3.6 According to his submission, what was sought for by Page 6 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 him vide Exhibit-16 seeking permission to place additional written statement by way of subsequent pleading is not an amendment to the written statement but as such, a written statement simpliciter as Exhibit-8 though termed as written statement, admitting the claim made in the suit, was pursuant to a consent terms, which ultimately came to be withdrawn. Again for the very same principle of law, he relied on a decision in the case of P. A. Jayalakshmi v. H. Saradha & Ors, reported in (2009) 14 SCC 525, relying on para 8 therein, it is submitted that Order VI Rule 17 of "the Code" speaks of amendment of pleadings, whereas Order VIII Rule 9 of "the Code" provides for subsequent pleadings by defendants. Therefore, according to his submission, he need not apply for amendment to his written statement but since Exhibit-8 was termed as a written statement, there is no alternate but to seek permission of the Court to file additional written statement by way of subsequent pleadings and it is the discretion of the Court to permit the same as held by the learned Judge himself, in the facts and circumstances of the case.
3.7 In view of the facts made clear before the learned Judge, according to his submission, he should have been permitted to produce additional written statement by way of subsequent pleadings. He has also relied on a decision in the case of Sushil Kumar Jain v. Manoj Kumar & Anr, reported in Page 7 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 AIR 2009 SC 2544, for a contention that amendment of a plaint and amendment of a written statement are not necessarily governed by the same principle. Adding a new ground of defense or substituting or altering a defense does not raise the same problem as adding, altering, substituting a new cause of action. At last, he has submitted that since there was nothing which can be said to be a written statement at Exhibit-8, it would be in the interest of justice to exercise the discretion permitting to file additional written statement by way of subsequent pleading, as he is deprived of filing the written statement because of the fraud practiced upon him under the guise of consent terms as agreed and ultimately, it had to be withdrawn. 3.8 He has further relied on a decision in the case of P. Saraswathi v. C. Subramaniam, reported in AIR 2014 Madras 50 to submit that rigid principles as applicable in the case of amendment of plaint are not to be applied in case of additional written statement. It is further submitted that as held in that decision, additional written statement can be allowed to be filed even after commencement of trial.
3.9 He has further submitted that permitting additional written statement, there is nothing which is sought to be stated inconsistent, as earlier written statement was based on consent only and which has come to be withdrawn before it is acted Page 8 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 upon, and therefore, he has requested that the order impugned be quashed and set aside.
4. As against that, Mr. P.K. Jani, Senior Advocate, learned Counsel assisted by Mr. Shivang P. Jani, learned advocate for the respondent No. 1 - plaintiff, submitted that no pleadings, subsequent to the written statement other than by way of defense to set-off or counter-claim, that too, by leave of the Court, no additional statement could have been permitted to be filed withdrawing the admission made in the earlier written statement. He has further submitted that if Court requires a written statement or additional written statement from any of the parties, by fixing time of 30 days for presenting the same, it can be filed but not at the instance of the defendant. 4.1 He has further submitted that once written statement is already filed, on 06.12.2010 and admitted the case of the plaintiff, any other additional statement either by way of inconsistent pleas therein or withdrawing such admission, cannot be permitted by the Court to be presented by way of additional statement.
4.2 It is further submitted that the family arrangement agreement dated 29.09.2010 was accepted and admitted by the petitioner - defendant No. 2, and therefore, by way of additional written statement, he cannot be permitted to turn his back, Page 9 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 which is otherwise not permissible to be presented even with the leave of the Court. Relying on a decision in the case of A. Sathyapal and Ors. v. Smt. Yasmin Banu Ansari and Anr., reported in ILR 2004 KAR 1399, drawing attention of the Court to page 1419 of the said decision, it is submitted that the Division Bench of the Karnataka High Court has rightly interpreted the provisions of Order VIII Rule 9 of "the Code"
showing that it is in two parts, where first part deals with filing of pleadings subsequent to written statement of the defendants. As held in that decision, no such pleadings subsequent to the written statement shall be presented except when the same is by way of defense to a set-off or counter-claim. 4.3 According to his submission, this part of the provision is not dealing with the filing of the written statement, it deals with the stage subsequent to the written statement in which the defendant may either make a counter-claim or may claim a set- off.
4.4 Drawing attention of the Court to the interpretation of the second part, which deals with the power of the Court to require either a written statement or an additional written statement, submitted that, that part of the provision does not create a right in favor of the defendant to file a written statement or additional written statement on his own, even if he has not already filed one.
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C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 4.5 He has further submitted that the requirement, which the provision deals with is that of the Court and not of the defendant. It is only when the Court, in the facts and circumstances of the case, is of the opinion that the written statement or additional written statement is necessary in order to effectually determine the controversy before it that it may require a defendant to file a written statement or an additional written statement.
4.6 Relying on a decision in the case of Thakkar Babulal Dayashanker (supra), it is submitted that no party can be permitted to raise subsequently a plea which is incompatible or inconsistent with the plea taken up in the earlier occasion in the earlier pleadings. Even if, according to his submission, second part of Order VIII Rule 9 of "the Code" empowers the Court to permit written statement or additional written statement, they are to be exercised ex debito justitiae.
4.7 He has further submitted that if at all the petitioner - defendant No. 2 wanted any written statement to be filed, he cannot resort to Order VIII Rule 9 of "the Code" but it could have been by way of amendment to the written statement under Order VI Rule 7 of "the Code", that too, for not raising any inconsistent plea to withdraw the admissions already made in the written statement. He has further submitted that permitting Page 11 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 such additional written statement to be filed would displace plaintiff's case.
4.8 Relying on a decision in the case of Heeralal v. Kalyan Mal & Ors, reported in AIR 1998 SC 618, more particularly, para 9, 10 and 12, it is submitted that amendment seeking withdrawal of admissions from a written statement cannot be permitted.
4.9 He has also relied on a decision in the case of P. A. Jayalakshmi (supra), already relied on by the learned advocate for the petitioner, more particularly para 8 and 9, to submit that leave for filing additional written statement at a belated stage is usually not granted.
5. Having heard learned advocates for the appearing parties and perusing the impugned order as also the documents annexed with the petition and the precedents relied on, it is clear that the proceedings is in between real brothers and mother, that too, for some property dispute, for which plaintiff claims that family arrangement came to be made on 29.09.2010 between plaintiff and defendants about the property.
5.1 From the plaint, which is at page 15, it appears that respondent No. 1 - plaintiff filed a suit seeking declaration that an agreement executed between parties as family arrangement Page 12 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 for the properties is binding to the parties to the agreement and petitioner - defendant No. 2 and other defendants have no right or authority to act against the conditions mentioned therein, either through themselves or through agents, assignees and any other person as also seeking injunction that they may not create charge or sell the said property therein.
5.2 Not only that, from the sequence of events, it appears that on 06.12.2010, the consent terms came to be executed between the parties, which is at Exhibit-9, based on which the written statement Exhibit-8, on that very day i.e. 06.12.2010, appears to have been filed. If contents of written statement Exhibit-8 is seen, apart from claiming that the suit filed by the plaintiff is correct and having accepted the same, it refers about a further agreement/consent entered into between them on that very day i.e. 06.12.2010, wherein they have prayed for a decree by consent of the parties, as per the consent terms mentioned in Exhibit-9. It further appears that instead of passing any order based on said consent terms, it was adjourned on the next date. However, vide order dated 15.01.2011, after hearing the parties and considering the prayer made in the suit as also the consent terms agreed between the parties, as something more than the claim in the suit is prayed for in the consent terms, the concerned Court refused to pass a decree based thereon, on that ground as also on the ground that whether deceased - Dr. Page 13 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 Prabhudas Patel has any heirs or not, cannot be considered without pedigree being produced and it requires leading of evidence.
5.3 Before the said consent terms Exhibit-9 and written statement is acted upon, vide application Exhibit-15 dated 05.03.2011, the petitioner - defendant No. 2 by way of pursis, withdrew his written statement Exhibit-8 as also consent in the consent terms Exhibit-9. As asserted in the said pursis, with a view to avoid any dispute with regard to consent terms Exhibit-9 in future, by the said pursis, written statement based on consent terms Exhibit-9, both came to be withdrawn, which is obtained pursuant to a fraudulent misrepresentation. If no fraud was practiced upon him, then also before the consent is acted upon, parties are at liberty to withdraw the consent for passing even a decree thereon.
5.4 Thereafter, vide Exhibit-16, the petitioner - defendant No. 2 sought for permission from the Court to produce additional written statement as subsequent pleadings in view of Order VIII Rule 9 as also Section 151 of "the Code" on 05.03.2011 i.e. the same day on which the consent came to be withdrawn along with a copy of the written statement produced. The learned Judge vide order dated 09.01.2012 has passed the order refusing the said permission on the ground that by permitting additional written statement, an inconsistent plea may come on record, Page 14 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 which is impugned before this Court. As such, the defendant can raise inconsistent pleas and inconsistent defense in the written statement, whereas it is not permissible to raise any inconsistent pleas in the plaint.
5.5 If the sequence of events, which have occurred as narrated hereinabove, is taken into consideration, the Exhibit-8, which is termed as a written statement cannot be said to be a written statement at all, as it is based on a consent terms, which is executed on that very day i.e. on 06.12.2010. There is no particular admission in the written statement but whole claim made in the suit is admitted, that too, pursuant to some settlement further entered into between the parties on that day i.e. on 06.12.2010. However, since before those consent terms can be acted upon, once it is already withdrawn, a need has arisen to withdraw even the said written statement, which is admitting the whole suit pursuant to a consent entered upon by the parties. Therefore, in my view, it cannot be termed as a written statement at all, based on the voluntarily filing of a written statement to the suit without any compromise being entered into by the parties.
5.6 In that view of the matter, under the second part of Order VIII Rule 9 of "the Code", it would have been permitted as an additional written statement as subsequent pleadings. Page 15 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022
C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 5.7 So far as requirement of the Court for the same and power of the Court to permit the same is concerned, there is no dispute raised either by the learned advocate for the petitioner or the respondent.
5.8 The contention raised that no additional written statement as subsequent pleadings other than by way of defense to set-off or counter-claim can be presented even with the leave of the Court, relying on decision in the case of A. Sathyapal (supra), when para 20 of the said decision is referred, it has recognized the power of the Court to require either a written statement or additional written statement from any of the parties and fixed a time of not more than 30 days for the same. Of course, it is mentioned therein that this part of the provision does not create a right with the defendant to file a written statement or a additional written statement on his own, if he has not already filed one.
5.9 According to me, it is not a case here that no written statement is filed. As such, as held hereinabove, filing of such written statement is induced with the consent terms agreed between the parties on that very day and consent terms dated 06.10.2010 is already filed, and therefore, it can't be termed as written statement at all. If the petitioner - defendant No. 2 had to admit the claim made in the suit, he would have only filed the written statement saying so, not along with the consent terms as Page 16 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 also not referring those consent terms in the said written statement. Over and above that when the consent for passing a decree based thereon is already withdrawn, according to me, written statement filed based on consent terms also should have been permitted to be withdrawn or party should have been permitted to file additional written statement if at all no permission for withdrawal of written statement could be granted. At any rate, by way of additional written statement, petitioner - defendant No. 2 does not want to withdraw the admissions made in a written statement, if at all whole suit was to be admitted by the defendant, there was no scope for any consent terms being agreed upon between the parties on the day on which the written statement is filed and consent terms is also submitted. 5.10 Over and above that respondent No. 1 - plaintiff, cannot be permitted to proceed with the suit without there being any defense raised by the petitioner - defendant No. 2, more particularly, earlier written statement can be held to be induced by consent terms, which is already withdrawn along with the written statement by way of pursis.
5.11 Therefore, it can safely be concluded that as a requirement by the Court, such additional written statement should have been permitted by the trial Court, more particularly, when there are three other suits pending between the parties, where there is a contest.
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C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 5.12 Another contention by the learned Counsel for respondent No. 1 - plaintiff that the precedents relied on by the petitioner - defendant No. 2 with regard to inconsistent pleas were rendered in the situation that an amendment to the written statement was sought for by way of raising inconsistent pleas. Whereas, as submitted by the learned advocate, the petitioner - defendant No. 2 could have prayed for amendment of his written statement, raising such inconsistent pleas, if that decision is to be relied on. Furthermore, the judgment in the case of Thakkar Babulal Dayashanker (supra), relied on by the learned advocate for the respondent No. 1 - plaintiff that no inconsistent pleas could be raised and no additional written statement can be filed except amended plaint alone. Relying on the said decision, further argument is raised that without seeking amendment of the earlier written statement, defendant cannot be permitted to withdraw the admissions made in his earlier written statement by second/subsequent written statement without seeking amendment to the written statement, as provided under Order VI Rule 17 of "the Code". In view of the fact, inconsistent pleas can be raised by the defendant in the written statement itself, even that can be raised by way of additional written statements also and when Court wants it to be filed, it should be filed within a period of 30 days. From the aforesaid facts discussed hereinabove, under what circumstances written statement Page 18 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 Exhibit-8 came to be filed, additional written statement is required to be permitted to be filed by the petitioner - defendant No. 2.
5.13 Relying on the decision of this Court in the case of Thakkar Babulal Dayashanker (supra), a contention raised that no party can be permitted to raise subsequent plea, a plea which is incompatible or inconsistent with the earlier occasion in the earlier proceedings, cannot be applied in the facts of the present case as first written statement Exhibit-8 is because of consent terms agreed upon by the parties on that very day and based thereon, admitting the suit claim and except that nothing more in it is mentioned about the defense raised. It is not the case where, on merit, any defense is raised in a written statement and certain admissions are made, which is sought to be withdrawn by way of additional written statement as claimed but here it is sought to be filed as there is no written statement at all on the record except Exhibit-8 based on the consent, which is withdrawn before it is acted upon.
5.14 The very contention that petitioner - defendant No. 2 cannot resort to Order VIII Rule 9 of "the Code" but it could have been by way of amendment to the written statement under Order VI Rule 17 of "the Code", that too, by not raising any inconsistent plea to withdraw the admission already made in the Page 19 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 written statement can be rejected outright on the ground that as held hereinabove, there is no defense raised at all or admissions made at all to the claim made in the suit. Therefore, there is no question of making any inconsistent pleas in the written statement. Therefore, either it is sought to be produced by way of Order VIII Rule 9 of "the Code" or through Order VI Rule 17, it makes no difference.
5.15 Reliance placed on the decision in the case of Heeralal (supra) is also not helpful to the respondent No. 1 - plaintiff that there is nothing in the additional written statements, which is permitted to displace the plaintiff's case raised by way of the suit. So far as power of the Court requiring a written statement or additional written statement is concerned, no dispute is raised and as such, in the facts and circumstances of the present case, it is required to be permitted, as trial Court had rejected the same only on the ground that no inconsistent plea can be raised in a additional written statement.
6. In any view of the matter, allowing additional written statement would prevent the respondent No. 1 - plaintiff to earn undue advantage of so called settlement terms, which was never acted upon and withdrawn subsequently. According to me, contest to the suit is revived by withdrawal of the consent/settlement deed, based on which the written statement Page 20 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022 C/SCA/13063/2012 JUDGMENT DATED: 13/07/2022 came to be filed. Therefore, if not as a fresh written statement but by way of additional written statement, I think it is most appropriate and proper to permit petitioner - defendant No. 2 to file the same. By that, it cannot be said that there is any inconsistent plea raised in a written statement. Conceptually, it is not a case of inconsistent plea but a withdrawal of concession based on consent/settlement deed, which is not acted upon and it can be withdrawn before any decree is passed based thereon. Hence, impugned order passed below Exhibit-16 dated 09.01.2012, passed by the Principal Senior Civil Judge, Nadiad, is hereby quashed and set aside and petitioner - defendant No. 2 is permitted to submit his additional written statement, as required in view of the facts stated hereinabove, which is already submitted simultaneously with the filing of the application seeking permission and that may be accepted on record.
In view thereof, this petition stands disposed of as allowed. Rule made absolute to the aforesaid extent.
No orders as to cost.
Sd/-
(UMESH A. TRIVEDI, J.) Raj Page 21 of 21 Downloaded on : Mon Jul 18 20:53:51 IST 2022