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2009 DIGILAW 1087 (KER)

Venugopal R. v. Meenakshi Gopinath

2009-11-13

S.S.SATHEESACHANDRAN

body2009
Judgment : Writ petition is filed seeking the following relief: "To issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exts.P8 and P12 and to set aside the same as illegal." 2. Petitioner is the fourth defendant in O.S.No.686 of 2007 on the file of the 1st Additional Sub Court, Thiruvananthapuram. Suit is one for declaration that plaint B schedule pathway is a private pathway and plaintiff is the absolute owner of plaint A schedule property and for injunction. That suit is now being jointly tried with another suit, numbered as O.S.No.1104 of 2008, which was transferred from the file of the Munsiff Court, Thiruvananthapuram, where it was numbered as O.S.No.238 of 2001. O.S.No.686 of 2007 is taken as the main case in which after joint trial the court has directed for recording the evidence. After the case was included in the special list for trial, plaintiff moved two applications (Exts.P4 and P6) for correcting some mistakes in the description of the properties and also its boundaries. Petitioner/fourth defendant filed objections to that application. Ext.P7 is the copy of the objections. The learned Sub Judge after hearing both sides allowed the amendment sought for vide Ext.P8 order subject to terms. Amendment being carried out in the plaint opportunity was extended to the defendants to file additional written statement. Petitioner/fourth defendant thereupon filed Ext.P9 additional written statement to the amended plaint. Plaintiff moved an application imputing that in the additional written statement filed to the amended plaint, the fourth defendant has raised pleas which are inconsistent to his previous written statement and the additional written statement so filed is liable to be eschewed from consideration. Ext.P10 is the application filed by the plaintiff. Fourth defendant resisted that application filing Ext.P11 objections. Learned Sub Judge after hearing both sides allowed Ext.P10 application vide Ext.P12 order rejecting the additional written statement filed by the fourth defendant, but, providing him an opportunity to file an additional written statement confining to the amendment carried out in the plaint. Propriety and correctness of Exts.P8 and P12 orders, the former allowing the amendment of the plaint and the latter rejecting the amended written statement filed by the fourth defendant, is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Propriety and correctness of Exts.P8 and P12 orders, the former allowing the amendment of the plaint and the latter rejecting the amended written statement filed by the fourth defendant, is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. The question posed for consideration is whether there is any impropriety or illegality in Exts.P8 and P12 orders passed by the learned Sub Judge. Perusing Ext.P8 order with reference to the amendment application moved by the plaintiff, I find what was sought by way of amendment was only some corrections in the description of the plaint properties. By the proposed amendment no material allegations raised in the plaint were sought to be amended causing any prejudice or injury to the opposite party. The amendment application was moved by the plaintiff after the case was included in the special list for trial and, in fact, only after steps proceeded for examining of the plaintiff by commission are highlighted by the learned counsel for the petitioner to contend that such amendment after commencement of the trial is impermissible in the absence of satisfactory ground showing that despite due diligence the plaintiff could not have sought for the amendment before the trial. The interdiction covered by the proviso to Order VI Rule 17 of the Code of Civil Procedure is banked upon by the learned counsel to contend that the belated request made by the plaintiff for amending the plaint should not have been entertained by the court. Proposed amendment relate to only correction of the boundaries in the schedule description of the plaint property and also the location of that property shown in the body of the plaint and by no stretch of imagination it can be treated as having caused any prejudice to the opposite party, is the submission of the learned counsel for the plaintiff. The court cannot be too technical or hypersensitive in deciding a question relating to amendment of pleading. The provision under Order VI Rule 17 of the CPC is intended to enable a party to seek for amendment of the pleadings when it is so found necessary for resolving the real controversy requiring adjudication in the suit. The court cannot be too technical or hypersensitive in deciding a question relating to amendment of pleading. The provision under Order VI Rule 17 of the CPC is intended to enable a party to seek for amendment of the pleadings when it is so found necessary for resolving the real controversy requiring adjudication in the suit. Having regard to the nature of the amendment sought for which in fact appears to be for some corrections in the location of the property and also the boundaries of the plaint property which had been previously shown incorrectly, I find the court below was fully justified in allowing the amendment. Amendment has been allowed only on terms compensating the injury, if any, caused to the opposite party. So much so, no interference with Ext.P8 order in the given facts of the case is warranted. 5. Now coming to the question whether Ext.P12 order suffers from any infirmity warranting interference by exercise of visitorial jurisdiction vested with this Court, it is seen, perusing Ext.P9 additional written statement filed by the petitioner/fourth defendant he has set up a new defence that too an inconsistent defence with what was canvassed earlier in his previous written statement. In the previous written statement the petitioner/fourth defendant resisting the suit claim had raised a defence disputing the title of the plaintiff over the suit property. In answer to the amended plaint which as already pointed out related to only correction of the plaint property, both in the body of the plaint and also in the schedule, the defendant had filed an additional written statement canvassing a new defence that he has acquired a right of prescriptive easement over a way through plaint property. It is also seen that in answer to the amended plaint no specific plea was raised in the additional written statement, but, whatever canvassed was in projecting the new defence as indicated above. The learned counsel for the petitioner assailed Ext.P12 order passed by the learned Sub Judge relying on Baldev Singh and Others v. Manohar Singh and Another (2006(6) SCC 498) and contended that in the matter of amendment of the plaint and written statement though the general principles applicable are the same, in the case of the latter it is liberal permitting the defendant to set up inconsistent pleas as well. The rigour or restriction in permitting the plaintiff to amend the plaint as such is inapplicable in the case of a defendant in the matter of amending his written statement, is the submission of the learned counsel. In amendment of the written statement the Apex Court has pointed out in the above decision, according to the learned counsel, that the courts are more liberal than in amendment of the plaint as the question of prejudice is less likely to operate in such cases. When the defendant has been permitted to file an additional written statement in answer to the amended plaint, according to the learned counsel, essentially that is an order passed under Order VIII Rule 9 of the Code of Civil Procedure which enable him to raise additional pleading including setting up of any new plea of defence which may be inconsistent with the earlier plea raised in the previous written statement. So much so, the rejection of the additional written statement by the court below vide Ext.P12 order, according to the counsel, is erroneous and liable to be set aside. Learned counsel appearing for the plaintiff inviting my attention to Gurdial Singh and Others v. Raj Kumar Aneja and Others (2002(2) SCC 445) submitted that in answer to an amended plaint the defendant can file an additional written statement only in respect of the matter brought in by way of amendment and he cannot be permitted to set up any new plea which was not canvassed earlier in his previous written statement. It is further submitted by the counsel banking upon Order VI Rule 17 of the Code of Civil Procedure that the defendant cannot set forth a new defence in the additional written statement in answer to the amended plaint. The court below while passing Ext.P12 order rejecting the additional written statement of the defendant has permitted him to file an additional written statement afresh in answer to the amended plaint is also pointed out by the counsel to contend that no injury had been caused to the defendant by that order and at any rate such an order does not warrant any interference by this court in exercise of its supervisory jurisdiction. 6. I find considerable force in the submission made by the learned counsel for the plaintiff. 6. I find considerable force in the submission made by the learned counsel for the plaintiff. In Gurdial Singh's case (supra), the Apex Court has held thus: "While granting leave to amend a pleading by way of consequential amendment the court shall see that the plea sought to be introduced is by way of an answer to the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment." When that be the law laid down by the Apex Court no transgression flouting the principle laid down thereunder is permissible. The decision relied by the learned counsel for the petitioner/fourth defendant in Baldev Singh's case dealt with a case where amendment of the written statement was considered and not a case where additional written statement was filed in response to amendment of the plaint. The two situations stand on different footings and so much so, the observations and perhaps the principles formulated in the above decision cannot be applied to a case where an amendment of the written statement in answer to a plaint is filed by the defendant. Moreover when the court is granting permission to the defendant to file an additional written statement in answer to the amended plaint it is not empowering the defendant to raise new plea by way of additional pleading as contemplated under Order VIII Rule 9 of the Code of Civil Procedure. In fact Order VIII Rule 9 of the Code of Civil Procedure is in the nature of an interdiction restraining the parties from advancing any subsequent pleadings other than by way of defence to set of or counter claim except with the permission of the court. Order VI Rule 17 of the code of Civil Procedure reads thus: "17. In fact Order VIII Rule 9 of the Code of Civil Procedure is in the nature of an interdiction restraining the parties from advancing any subsequent pleadings other than by way of defence to set of or counter claim except with the permission of the court. Order VI Rule 17 of the code of Civil Procedure reads thus: "17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: (proviso omitted as it is not necessary)" Invoking the above rule when an amendment of the plaint as requested for by the plaintiff is permitted by the court to determine the real question in controversy between the parties necessarily and inevitably an opportunity must be extended to the defendant to furnish answer to the amended plaint. But when such leave to file additional written statement is granted, it allows permission only to reply to the portion amending the plaint. That permission cannot be taken as an empowerment to treat the subject matter afresh or to ignore the earlier written statement. In the given facts of the case, I find learned Sub Judge was fully justified in reaching the conclusion that the new defence canvassed by the petitioner/fourth defendant which is inconsistent with the previous pleading canvassed in the written statement cannot be entertained. Ext.P12 order passed by the learned sub Judge reserving the right of the fourth defendant to file additional written statement confining his answer strictly to what has been brought in by way of amendment to the plaint is proper, correct and valid, and no interference with that order also is called for. Writ petition is closed.