Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1661 (RAJ)

Leela Devi v. Sohan Lal

2009-07-21

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned order dated 23.3.06 of Sub-Divisional Officer Sojat. 2. Briefly stated, the facts are that during pendency of a revenue suit before Sub-Divisional Officer Sojat the non-petitioner-plaintiffs filed an application under Order 8 Rule 9 and Order 6 Rule 17 read with section 151 of the Civil Procedure Code (C.P.C.) for not allowing and taking on record amended written statement dated 15.4.1996 and 6.1.06 submitted in reply to the amended plaint before the court; whereupon Sub-Divisional Officer by the impugned order dated 23.3.06 allowed the application and refused to accept and take amended written statement dated 15.4.1996 and 6.1.09 on record. Aggrieved against the order dated 23.3.06, this revision petition is filed. 3. I have heard learned counsels for both the parties. 4. The learned counsel for the petitioner has contended that the non-petitioners-plaintiffs filed a suit on 1.12.1994 and thereafter amended the plaint three times, in response to which the petitioners-defendants put up three written statements dated 8.5.1995, 15.4.1996 and 6.1.06. But whereas the non-petitioners-plaintiffs were allowed to amend the plaint as many times as they wished, the petitioners defendants were deprived of opportunity of filing written statement in response to the amended plaint. The trial Court has held that counter claim cannot be put up without prior permission of the court; this is a wrong and illegal inference of the trial court. There is no need to seek prior permission of the court for raising any counter claims. The trial Court has misconstrued the provision of Order 8 Rule 9 of the CPC which is in respect of submission of pleadings subsequent to the written statement of a defendant and does not provide for rejection of written statement submitted in reply to the amended plaint under Order 6 Rule 17 of the C.P.C. It was also contended that the defendants No. 5, 6 & 7 were minors at the time of submission of the first written statement on 8.5.1985 in which all the points of plaint were conceded on behalf of the minors by somebody else causing injury to the interest of the minors. The verification on the first written statement is only be defendant No. 1 and 2 who are real brothers of the plaintiff-non-petitioner Sohan Lal. The verification on the first written statement is only be defendant No. 1 and 2 who are real brothers of the plaintiff-non-petitioner Sohan Lal. As such the impugned order of Sub-Divisional Officer Sojat is illegal and should be quashed. 5. Countering the contentions of the petitioners, the learned counsel for the non-petitioners argued that the defendants No. 4, 5, 6 & 8 earlier conceded to the pleadings through their first written statement filed on 8.5.1985; now they are estopped from going back on their words and put up denial of the pleadings of the plaint through their amended written statement. They are also debarred from raising any counter claim in view of their earlier admission of the plaint. No amended written statement can be filed in contradiction of the principle of estopple as held in 1963 RRD 100. The defendants-petitioners can file their amended written statement only to the extent of amended plaint without making any deviation from their earlier admission. As such there is nothing wrong in the impugned order of the trial Court. 6. I have given thoughtful consideration to the rival contentions and perused the impugned order and gone through the file. 7. It is apparent from perusal of the impugned order dated 23.3.06 of the trial Court that Sub-Divisional Officer allowed the application filed under Order 8 Rule 9 of the CPC and declined to accept amended written statement dated 15.4.1996 and 6.1.06 of the defendants-petitioners submitted in reply to the amended plaint allowed to the non-petitioners-plaintiffs under Order 6 rule 17 of the C.P.C. For ready reference provision of Order 8 Rule 9 of the C.P.C. are reproduced below:- "9. Subsequent pleadings.-No pleading subsequent to the written statement of a defendant other than by way of defence to set-off counter-claim shall be presented except by the leave of the court and upon such terms as 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 of not more than thirty days for presenting the same." Bare perusal of the above provision makes it abundantly clear that it is with regard to furnishing of the pleadings subsequent to the written statement of the defendant. This is about what is know in common parlance as tokc-my-tokc- This provision also gives power to the court which can require a written statement or additional written statement from any of the parties. This provision does not provide for rejection of an amended written statement sought to be submitted in response to the amended plaint. Thus, evidently, the trial Court has misconstrued the provision of Order 8 Rule 9 of the C.P.C. in the garb of which defendant is deprived of opportunity of putting up his defence by way of an amended written statement in response to the amended plaint. 8. Perusal of the record shows that the first written statement was put up on 8.5.1995 when defendants No. 4, 5 and 6 were undeniably minors. In this written statement all the paras of the plaint are conceded, even on behalf of the minors also. The verification at the end of this written statement dated 8.5.1995 bear thumb impressions of Ramchandra and Kewal, defendants No. 1 & 2 who are brothers to the Sohan Lal, plaintiff-non-petitioner. Obviously this lacks credence. Subsequent to this written statement, plaint was further amended by the plaintiff and accordingly written statement was submitted on 15.4.1996 and 6.1.06 in response to the amended plaint when defendants. No. 4, 5 and 6 who were earlier minors had become major. In the subsequent amended written statement counter claim were also raised by the defendants. It is not necessary for the defendants to seek prior permission of the trial Court for putting up any counter claim. The inference of the trial Court in the impugned order that the defendants should have sought prior permission before raising counter claim is patently illegal. It is also important to safeguard the interest of the minors and any admission in the first written statement prior to the amended plaint which is prejudicial to the interest of the minors would not hold good against the minors; and once minors attained adulthood they are free to put up their defence through amended written statement in response to the amended plaint allowed by the court under Order 6 Rule 17 of the C.P.C. It is strange to observe that the trial Court has allowed plaintiffs to make as many amendments as they wished in their plaint but has debarred the defendants from putting up written statement and counter claim in response to the said amendments. 9. In view of the foregoing discussion, it is apparent that the trial Court has committed illegality and material irregularity in passing the impugned order dated 23.3.06. 10. As such the revision succeeds. The impugned order dated 23.3.06 of the trial Court is set aside and defendants-petitioners are allowed to submit written statement in response to the amended plaint allowed to the plaintiffs-non-petitioners by the trial Court. Pronounced.