Patna High Court
Rohan Lal Choudhary vs Prem Prakash Gupta on 25 July, 1979
Equivalent citations: AIR 1980 PATNA 59, 1979 BBCJ 771, (1980) 1 RENTLR 635, (1980) BLJ 19
ORDER Hari Lal Agrawal, J.
1. This application by the defendant is directed against an order of the Munsiff granting leave to the plaintiff to file additional pleading in the following circumstances.
2. The plaintiff opposite party filed a title suit in the Court of the Munsif, Patna City, for realisation of arrears of rent and eviction of the petitioner from the premises in suit. Admittedly the premises in suit originally belonged to one Shrimati Shanti Devi who had inducted the petitioner in the same. The plaintiff purchased the house on 16-12-1974. In the written statement the defendant took several pleas and denied all the allegations made by the plaintiff, against him for his eviction. One of his pleas was that he had spent Rs. 1,430/- towards repair of the house with the consent of the previous landlord, which amount had not yet been adjusted towards the rent and, therefore, he was entitled to receive that amount from the plaintiff.
3. The trial Court allowed the plaintiff to amend his plaint, granting the defendant an opportunity to file additional written statement, The defendant filed his additional written statement accordingly on 24-3-1977. Soon thereafter on 20-4-1977 the plaintiff filed a petition in the nature of additional pleadings supposed to be in reply to additional written statement filed by the defendant. Objection was taken by the petitioner to this additional pleading of the plaintiff on various grounds, but the learned Munsiff by the impugned order allowed the same.
4. Learned counsel appearing in support of this petition contended that according to the procedure contained in the Code of Civil Procedure, this additional pleading was not called for and accordingly it was argued that the Munsiff has committed an apparent error of jurisdiction,
5. In order to appreciate the contentions advanced by learned counsel for rival parties, the relevant provisions of the Code of Civil Procedure may be noticed. Order VI of the Code deals with the pleadings 'generally'. Orders VII and VIII deal with the 'plaint', 'Written statement' and 'set-off'. Rule 17 of Order VI deals with amendment of pleadings. This obviously applies to the amendment of the plaint and the written statement both. According to this provision, "the Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just.....for the porpose of determining the real question in controversy between the parties."
Apart from the above provision there is one more provision contained in Rule 9 of Order VIII which reads as follows:
"No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms M 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 for presenting the same." It is, perhaps, in exercise of the provisions contained in this rule that the learned Munsif has granted leave to the plaintiff.
6. It was contended that Rule 9 occurring in Order VIII which deals with written statement, does not empower a plaintiff to take recourse to this provision. It was contended that even the two kinds of subsequent pleadings which are contemplated under this rule, are "by way of defence to a claim of set-off or a counter-claim made by the defendant." A subsequent pleading, therefore, aa envisaged under this rule by the plaintiff is by way of defence and not as a supplemental provision to further substantiate or add to the plaintiffs case as made out in the plaint.
7. It is not possible to accept this contention in the bald form as has been advanced by the learned counsel for the petitioner, A subsequent pleading by way of defence to a set-off or counter-claim can be filed by the plaintiff as a matter of right, but the provisions do contemplate the filing of other pleading as well but by the leave of the Court and invest the Court with the widest possible discretion. Under this rule either party may, with the leave of the Court file a supplementary written statement, but at the same time it cannot be disputed that the law does not compel the plaintiff to file any rejoinder to the allegations made in the written statement and the failure of the plaintiff to file such a rejoinder cannot be treated as an admission of the plea in the written statement. The plaintiff is entitlec to join issues with the defendant with respect to all those allegations which are made in the written statement anc may lead evidence in rebuttal of those allegations notwithstanding the fact that he does not file any rejoinder. Although the procedure is well established, but nonetheless reference may be made in support of the same to two Bench decisions of the Madras High Court in the cases of Gurusanthayya v. Setra Veerayya (AIR 1952 Mad 825) and Veerasekhara Varmarayar v. Amirthavalliammal (AIR 1975 Mad 51).
In my opinion, it will, therefore, not be advisable to lay down as an abstract principle that under Rule 9 of Order VIII leave should be obtained, by the plaintiff to file subsequent pleading as a rejoinder to the written statement, additional written statement or the like, as this would result in lengthening the proceeding and is more likely to be abused. But at the same time in appropriate cases, if the Court feels satisfied that such a pleading is necessary, then leave can be granted. However, the Court exercising the discretion under this rule cannot permit to go on record a rejoinder which is inconsistent with the original pleading and which contains any allegation of fact inconsistent with the earlier pleading. This provision, in my view, has been made more with the purpose of filing of written statement after the stage of Order VIII, Rule 1 is over, as was the situation in the case of Kali Pado v. Surendra Nath (AIR 1975 Pat 24), or filing of a additional written statement where a plaint is amended, or a minor defendant attains majority and wants to file his own written statement, or a new defendant is added after the filing of the written statement. I can imagine yet another situation of filing of a subsequent pleading under the provisions of this rule by either party if it wants to bring to the notice of the Court any subsequent event having taken place, which must be allowed to do as having a bearing on the controversy in the case.
8. In the impugned order although the learned Munsif has allowed the additional pleading of the plaintiff on an erroneous ground that if the plaintiff is not allowed to file it then "the allegations made by the defendant may go unchallenged and that may prejudice the case of the plaintiff" since the defendant has made certain allegations to which the plaintiff has got a right to controvert, sitting in the revisional jurisdiction, however I do not feel persuaded to interfere with the discretion exercised by the learned Munsif as there is an observation in the impugned order to the effect that if the allegations made by defendant were not challenged, that might prejudice the case of the plaintiff, although I do not find any discussion in the order with respect to those allegations as to how in the absence of any additional pleading by the plaintiff any prejudice would be caused to him,
9. For the reasons discussed above, I would dismiss this application, but at the same time would leave the parties to bear their own costs.