Jammu & Kashmir High Court
Abdul Rehman vs Syed Yousuf Shah And Ors. on 14 May, 2007
Equivalent citations: 2007(2)JKJ171, AIR 2008 (NOC) 900 (J. & K.), 2008 AIHC (NOC) 886 (J. & K.)
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. Petitioners have called in question order dated 26.12.2006 passed by the Sub-Judge (CJM) Budgam in a suit titled as Syed Hussain Shah and Ors. v. Abdul Rehman Ganaie and Ors. whereby petitioners- defendants came to be directed to confine to the pleadings and file amended written statement. Brief facts are to be noticed.
2. Respondents/plaintiffs filed a suit for grant of decree of permanent injunction before the trial court on31.07.1993. Petitioners/defendants appeared and filed written statement. Issues came to be framed. Parties led evidence and file was posted for final arguments on 31.07.2000. From 31.07.2000 the file remained on dockets of the court for addressing further arguments. In the meantime, one legal point was raised by the defendants which came to be thrashed out vide order dated 06.07.2000. Feeling aggrieved, defendants filed revision petition before this Court which came to be decided on 10.07.2003. Thereafter, it appears that notice came to be issued to the parties vide order dated 23.07.2003. Parties caused appearance. Learned Counsel for the plaintiff filed application for amendment on 24.10.2005 in order to incorporate the relief in the plaint which was resisted by the defendants/petitioners and came to be allowed vide order dated 28.06.2006 and proposed amendment was taken on record. Defendants were directed to file amended written statement vide order dated 01.09.2006. Accordingly, defendants/petitioners filed amended written statement on 07.10.2006. Learned Counsel for the respondents/plaintiffs raised objection before the trial court that defendants have filed written statement which is beyond the scope of amendment granted and have traversed beyond the pleadings. The trial count after hearing the parties come to the conclusion that the defendants/petitioners have introduced new facts in their written statement which was beyond the scope of the order permitting the plaintiff to amend the suit and accordingly defendants were directed to file amended written statement while keeping in view the interim orders passed by the trial court. Feeling aggrieved, petitioners/defendants challenged the impugned order.
3. Heard. Considered.
The bone of contention in this petition is whether petitioners/defendants can resist the plaint on other grounds which were not raised, projected and pleaded in the written statement filed earlier and amended written statement is beyond the scope of the orders passed by the trial court.
4. The crucial question is what was the amendment sought by the plaintiffs/respondents. In title clause, plaintiffs have categorically stated that suit is for grant of decree of permanent injunction and in the body from para No. 1 to para No. 7 they have given their details and the facts/grounds on which the prayer is sought but they have omitted to mention what relief they have sought in relief clause. Though they have in the title clause specifically sought grant of decree of permanent injunction. The parties have joint issues and led evidence and are in lis for last more then twelve years. The relief clause is dependent upon the facts and grounds pleaded in the plaint. They have not sought any amendment in the grounds or facts but defendants have introduced new facts/grounds without seeking amendment of the written statement. They have specifically taken all the grounds about the maintainability of the suit in the earlier written statement but have now introduced new facts/grounds as mentioned supra. The question is, can they do so, the reply is in negative for the following reasons:
5. Section 26 of Code of Civil Procedure 1977(1920 A.D) for short "the Code" provides how to institute a suit. The suit can be instituted by the presentation of the plaint or any such other manner as may be prescribed.
6. The next question is what does "plaint" mean. Order 7 of the Code provides that plaint shall contain what particulars. It is profitable to reproduce Order 7 Rule 1 of the Code hereunder:
1. Particulars to be contained in plaint. - The plaint shall contain the following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the fact showing that the Court has jurisdiction;
(g) the relief which plaintiff claims;
(h) where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of Court- fees, so far as the case admits.
7. This provision of law mandates that plaint shall contain particulars mentioned supra. The plaintiffs have disclosed in the plaint the reliefs which they have claimed. Order 7 Rule 7 of the Code also provides that plaint shall state specifically the relief which the plaintiff claims.
8. Order 6 Rule 1 defines pleading. As per this provision pleading includes plaint and written statement. Order 6 Rule 2 of the Code mandates that party shall disclose in the plaint/written statement, the facts on which the party relies for his claim or defence and the pleadings are to be divided in to paragraphs. As per Rule 2 of Order 6 of the Code, plaintiff has to state in a concise form of the material facts on which he relies and on the basis of which he has made the claim and then as per Order 7 of the Code supra he has to disclose the facts and also the relief.
9. Order 6 Rule 17 of the Code provides how and when pleadings can be amended. In the instant case plaintiffs/respondents have not sought amendment to the effect of introducing any new fact(s) in the plaint but have sought only amendment to the extent of incorporating the relief clause which is dependant on the facts pleaded, thus how defendants/petitioners have filed amended written statement which is beyond the facts pleaded in the plaint or in the written statement. If at all defendants have to amend the written statement then they have to seek the permission in terms of Order 6 Rule 7 of the Code. They cannot also file better pleadings unless they take recourse to Order 8 Rule 9 of the Code.
10. Viewed thus, impugned order is legal and speaking one and in the given circumstances of the case I deem it fit and proper not to interfere with the order impugned. Accordingly the revision petition is dismissed. Trial court is directed to decided the matter speedily as possible. Parties are directed to cause their appearance before the trial court on 21.05.2007. Registry is directed to send down the record.