Rajasthan High Court - Jaipur
Brij Lal vs Cooperative Society, Gram Sahuwala And ... on 6 April, 1992
Equivalent citations: 1992(1)WLN531
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the decree and judgment dated April 7, 1981, passed by the Additional District Judge, Sri Ganganagar, by which the learned Additional District Judge allowed the appeal filed by the Cooperative Society, village Sahuwala Tehsil and District Sri Ganganagar; set-aside the decree and judgment dated July 16,1980, passed by the learned Munsif, Sri Ganganagar, in Civil Suit No. 68 of 1979 (Brij Lal v. Sahkari Samiti, Sahuwala) and remanded the case for trial to the learned Munsif, Sri Ganganagar.
2. Plaintiff Brij Lal filed a suit for mandatory injunction and cancellation of the Patta with respect to Plots No. 125 and 126, measuring 100' x 44' granted in favour of the Cooperative Society, in the Court of the Munsif, Sri Ganganagar. The cancellation of the Patta was claimed as the land in question [marked A, B, C, and D in the site plan) was reserved for the water-pond and Gawad and this land bearing Patta No. 125 & 126 is not and Abadi land and is being used by the villagers and their catties for going to that water-pond, and the Panchayat granted the Patta in favour of the Cooperative Society without following the procedure provided under Rules 261 to 266 of the Rajasthan Panchayat Rules. The trial Court, vide its order dated April 9, 1979, ordered for the registration of the suit and for issuance of the summons for framing the issues by registered post as well as by ordinary process. The Office was, also, directed to place a note on the summons that the defendants should file the written statement on that very day. The case was fixed for service on the defendants on May 30, 1979. On May 30, 1979, Shri Som Dutt, Advocate, filed Vakalatnama on behalf of Mohta Singh the Secretary of the Society and, also, filed written statement. One Vakalatnama was, also, filed by Shri Ami Lal, Advocate, on behalf of Daulat Ram the Pradhan of the Society. Nobody appeared on behalf of the defendant No. 2 Gram Panchayat, Sahuwala and, therefore; the exparte proceedings were taken against the Gram Panchayat, Sahuwala and the case was fixed for framing the issues on August 20, 1979. Issues could not be framed on August 20, 1979, and the matter was adjourned to February 11, 1980, for framing the issues. In the meanwhile, on December 27, 1979, the counsel for the plaintiff filed an application under Order 26 Rule 9 C.P.C. for the appointment of the Commissioner for inspecting the site. The trial Court appointed Shri Ghan Shyam Das, Advocate, as the Commissioner to investigate into the matter and to submit his report, who, after investigation, submitted his report. On February 11,1980, Shri Ami Lal, representing the Society, filed written statement on behalf of the Administrator. An application was, also, moved, in which it was averred that the Executive of the Society was dissolved by the Deputy Registrar, Cooperative Societies, on January 1, 1980, and an Administrator has been appointed who has been authorised to file the written statement. The plaintiff objected to the taking on record the written statement filed on behalf of the Administrator and the case was adjourned, for deciding the objection, to February 26, 1980. On February 26, 1980, the arguments were heard and the case was adjourned for pronouncing the order on March 4, 1980. On March 4,1980, the trial Court, upheld the objection raised by the learned Counsel for the plaintiff that the taking of the written statement on record can be considered only if application under Order 8 Rule 9 C.P.C. is made and without any such application, the additional written statement cannot be taken on record. The Court, therefore, directed Shri Ami Lal the counsel for the defendant No. 1 to file an application under Order 8 Rule 9 C.P.C. within the period of three days and only after such application is moved, the question: whether the additional written statement can be taken on record-will be considered and the case was adjourned to March 7, 1980. On March 7, 1980, an application on behalf of the society under Order 8 Rule 9 C.P.C. was moved. This application under Order 8 Rule 9 C.P.C. was contested by the plaintiff and the learned trial Court, by its order dated March 15, 1980, dismissed the application under Order 8 Rule 9 C.P.C, filed by the defendant No. 1. After the rejection of the application under Order 8 Rule 9 C.P.C, a Vakalatnama was filed by Shri Rehka Ram, Advocate, on behalf of the Administrator, who sought time, to- which the learned Counsel for the plaintiff had no objection and the case was adjourned for framing the issues on April 30, 1980. On April 30, 1980, an application under Order 9 Rule 6 read with Order 3 Rules 1 and 2 C.P.C. was moved on behalf of the plaintiff for proceeding ex-parte against the defendant No. 1 because Shri Het Ram Administrator was not competent to represent the society and, therefore, the person, appointed by Het Ram, cannot be permitted to represent the defendant No. 1, i.e., the Society. A reply to this application was filed on behalf of the Society and the application was contested. The learned trial Court, by its order dated May 28, 1980, allowed the application of the plaintiff and directed the suit to proceed ex-parte against the defendant No. 1, also. The Court, therefore, did not frame any issue and without framing the issues, recorded the evidence produced by the plaintiff. On July 16, 1980, an application under order 6 Rule 17 read with Section 151 C.P.C. was moved by the plaintiff for seeking amendment in the relief clause and the learned Munsif, by its order dated July 16,1980, allowed the application under Order 6 Rule 17 read with Section 151 C.P.C. and decreed the suit vide its decree and judgment dated July 16, 1980. Dissatisfied with the decree and judgment dated July 16,1980, passed by the learned Munsif, Sri Ganganagar, the defendant No. 1 preferred an appeal before the learned District Judge, Sri Ganganagar, which was transferred to the Court of the learned Additional District Judge, Sri Ganganagar, who, by his decree and judgment dated April 7, 1981, allowed the appeal filed by the defendant No. 1; set-aside the decree and judgment passed by the learned Munsif, Sri Ganganagar, and remanded the case to him and directed the learned Munsif to take on record the written statement dated February 11,1980, filed on behalf of the Society and to allow the learned Counsel for the defendant No. 1 to represent the Administrator of the Society. It is against this decree and judgment, passed by the learned Additional District Judge that the plaintiff has filed the present appeal.
3. The short controversy involved in the present appeal is : whether the learned Additional District Judge was justified in allowing the application under Order 8 Rule 9 C.P.C., setting- aside the order dated March 15, 1980, as well as the ex-parte decree and judgment passed by the learned trial Court?
4. It is contended by the learned Counsel for the appellant that the defendant cannot be allowed to take a contrary plea by way of filing an additional written statement. It is further submitted by the learned Counsel for the appellant that the amendment in the plaint allowed by the trial court, empowers the defendant to file written statement only with respect to amended petition and not a de-nove written statement. In support of its case, the learned Counsel for the appellant has placed reliance over: Ditta Ram v. Amar Chand and Panna Lal v. Manak Lal RLW 1970 page 394, Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co. . The learned Counsel for the respondent No. 1, on the other hand, has supported the order-passed by the Court below and has submitted that when once the plaint has been allowed to be amended after filing of the written statement then the defendant cannot be debarred from submitting fresh written statement and taking additional pleas. In support of its case, the learned Counsel for the defendant has placed reliance over: Girdhari Lal v. Krishan Datt AIR 1960 Punjab 575. New Bank of India Ltd. v. Smt. Raj Rani , Jharakhand Mines and Minerals Ltd. and Anr. v. Nand Kishore Prasad and Ors. , Ram Chandra v. Mahendra Singh and Thargyil Sarada and Anr. v. Vovindan and Anr. .
5. I have considered the rival submissions made by the learned Counsel for the parties.
6. The controversy involved in the present case is : whether the learned Additional District Judge was right in allowing the application under Order 8 Rule 9 C.P.C. and setting-aside the ex- parte decree and judgment, passed by the trial Court? Order 8 Rule 9 C.P.C. provides that no pleadings subsequent to the written statement of a defendant, other than by way of defence to set-up or counter claim, shall be presented, except by the leave of the Court and upon such terms, as the Court thinks fit. The provisions of Order 8 Rule 9 C.P.C. fully empowers the Court to direct any of the defendants to file written statement or additional written statement at any time: These provisions are intended to secure proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to the purpose so that full powers may be exercised. These provisions are not sub-survent to the provisions of Order 6 Rule 7 or Order 6 Rule 17 C.P.C. These are independent of Order 6 Rule 7 and Order 6 Rule 17 C.P.C. and cannot curtail the discretion of the Court, or impose any restriction its descretion in asking the defendant to file additional written statement. Order 8 Rule 9 C.P.C. invests the Court with a wide discretion and enables it to take any additional written statement on record even if it is contrary to its earlier written statement. While exercising its discretionary powers, the Court does so only to advance the cause of justice. It is not in dispute that on May 30, 1980- the date fixed for the service on the defendants and for filing the written statement Shri Som Dutt, Advocate, filed Vakalatnama on behalf of Mohta Singh-the Secretary of the Society - while Shri Ami Lal, Advocate, filed Vakalatnama on behalf of the Administrator of the Society. Order 29 Rule 1 C.P.C. authorises the Secretary or any Director or other Principal Officer of Society who is able to depose to the fact of the case, to sign any pleadings on behalf of the society. When two counsel were engaged by the society- one by the Secretary and the other by the Administrator-then as per Order 1 Rule 11 C.P.C., it was necessary for the trial Court to decide the question who is the person authorised to conduct the suit on behalf of the Society? This should have been decided by the trial Court on May 30, 1979 itself, before taking any written statement on record. Unless and until that issue would have been decided, the Court should not have taken the written statement, filed by the Secretary, on record. If the trial Court would have decided that issue on that very day then this controversy would not have arisen and, therefore, I am of the opinion that the learned Additional District Judge was justified in setting-aside the order, passed by the Court below, as it cannot be said that the first written- statement, which was filed by Mohta Singh Secretary on behalf of the defendant No. 1, was the written statement filed on behalf of the Society. It is, no doubt true that normally Additional written statement, which set-out a new case from the earlier statement, should not be taken up on record, but in the present case, the first written statement was filed on behalf of the Society by its Secretary admitting almost the claim of the plaintiff, while in the subsequent written statement, which was filed by the Administrator on behalf of the Society, the averments made in the plaint were denied. The Secretary, after filing the written statement, later on, did not appear and the learned lower appellate Court came to the conclusion that the Secretary was in collusion with the plaintiff. Even otherwise, when the Executive was dissolved and the Administrator was appointed, then it was only the Administrator, who could have defend the suit, who was represented by Shri Rekha Ram-counsel for the defendant No. 1, and, therefore, the Court, could not have proceeded ex-parte against the Society as at that time, Mohta Singh was nowhere in the picture.
7. I have looked-into both the written statements, filed on behalf of the defendant No. 1. No doubt, the stand taken by the defendant No. 1 in the second written statement is at variance with the stand taken by it in the first written statement but there is no rule, which debars the Court from permitting the aggrieved party to file additional written statement when the collusion between the then Secretary and the plaintiff has been alleged, provided it should be in the interest of justice and enables a final adjudication to be made on the dispute and save the multiplicity of the suits. The Court can permit the additional written statement to be taken on record containing apparent by an inconsistent plea put-forth in the subsequent written statement, provided it is expedient with reference to the circumstances of the case. In my view., though inconsistent pleas have been taken in both the written statements, but it will not, in any way, embrass the trial of the suit, as the plea has been raise in the suit at the stage even when the issues were not framed and the trial had not yet started.
8. In this view of the matter, I am of the opinion that the decree and judgment, passed by the learned lower appellate Court, does not require any intereference.
9. In the result, the appeal filed by the appellant, is dismissed with costs.