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Himachal Pradesh High Court · body

2010 DIGILAW 1101 (HP)

H. P. S. I. D. C. LTD. v. KANOI HERBALS LTD.

2010-09-10

KULDIP SINGH

body2010
ORDER : KULDEEP SINGH, J. 1. This order shall dispose of OMP No. 366 of 2009, OMP (M) No. 18 of 2009 and OMP No. 630 of 2009. The newly added defendant No.2 Udit Kanoi who has been brought on record after the death of original defendant No.2 Hari Krishan Kanoi has filed OMP No. 366 of 2009 for amendment of written statement which was earlier filed by defendants No.2 to 4. The OMP (M) No. 18 of 2009 has again been filed by newly added defendant No.2 Udit Kanoi under Order 22 Rule 4 (2) read with Section 151 Civil Procedure Code. It has been alleged that he was not given any opportunity to file additional written statement for taking grounds which are available to him and were also available to original defendant No.2. It has been alleged that original defendant No.2 Hari Krishan Kanoi father of newly added defendant No.2 Udit Kanoi remained seriously ill from the year 2000 onwards. He had been moving in and out of hospitals, he was on dialysis during the pendency of the suit and died on 7.4.2007. In the application prayer has been made to file additional written statement. 2. OMP No. 630 of 2009 is for placing on record additional facts and additional written statement by the newly added defendant No.2 Udit Kanoi. It has been stated in the application that applicant is not raising any defence which was personal only to the knowledge of original defendant Hari Krishan Kanoi. It has been stated that the additional written statement of newly added defendant No.2 will show that he is basically raising legal and other defences which are available to him and were also available to late Hari Krishan Kanoi. He would be affected by the decree if passed against him. The newly added defendant No.2 has filed additional written statement. 3. The plaintiff has contested OMP No. 366 of 2009 by filing reply. It has not been denied that Hari Krishan Kanoi was not keeping good health. The statement of Hari Krishan Kanoi was recorded by the Local Commissioner at Kolkata. The amendments proposed in the written statement are not material and are basically matter of arguments. The court has already framed issue No.3 regarding limitation. The proposed preliminary objection No.10 is misleading. The amendments proposed are neither material nor necessary for determining the real controversy between the parties. The amendments proposed in the written statement are not material and are basically matter of arguments. The court has already framed issue No.3 regarding limitation. The proposed preliminary objection No.10 is misleading. The amendments proposed are neither material nor necessary for determining the real controversy between the parties. The proposed amendments in preliminary objection No.10 are wrong and denied. Similarly, the proposed amendment in preliminary objection No.11 are wrong. 4. The plaintiff has filed reply in OMP(M) No. 18 of 2009. it has been submitted that additional written statement is not material and alleged new grounds are basically matter of arguments. The application has been filed to delay the suit. The additional written statement is neither material nor necessary for determining the real question in controversy between the parties. The plaintiff in reply to OMP No. 630 of 2009 has submitted that application has been moved with sole intention to delay the proceedings. The contents of the application are vague, cryptic and general in nature. The applicant is not entitled to file new written statement by totally changing the nature and character of original written statement. The additional written statement proposed to be filed is not material and is basically matter of arguments nor the additional written statement is necessary in order to determine the real question in controversy between the parties 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for defendant No.2 has relied judgment dated 5.7.2010 passed by a co-ordinate Bench of this Court in CMP No. 155 of 2010 in RFA No. 203 of 1999. It has been submitted that applicant/defendant No.2 is not setting up any new case but he is setting up by way of additional written statement defences which were available to original defendant No.2. The learned counsel for the applicant has relied Order 22 Rule 4 (2) Civil Procedure Code. The applications have been opposed by the plaintiff on the ground that proposed defences projected by newly added defendant No.2 are matter of argument and for this purpose no additional written statement by newly added defendant No.2 is required. It has also been submitted that proposed amendment is not necessary in order to adjudicate the real controversy between the parties. In reply to OMP NO. It has also been submitted that proposed amendment is not necessary in order to adjudicate the real controversy between the parties. In reply to OMP NO. 630 of 2009, it has also been submitted that proposed amendment will change the nature of defence already taken in the original written statement. 6. The newly added defendant No.2 has prayed for filing of additional written statement on his coming on record after the death of his father original defendant No.2 Hari Krishan Kanoi. 7. The scope of Order 6 Rule 17 Civil Procedure Code and Order 22 Rule 4 (2) Civil Procedure Code is not the same. The legal representative of a deceased defendant has a right to file additional written statement within the parameters provided in Order 22 Rule 4 (2) Civil Procedure Code. I have gone through the earlier written statement and the additional written statement intended to be filed by newly added defendant No.2. It is not the case of the plaintiff that pleas which newly added defendant No.2 intends to take in the additional written statement were personal to original defendant No.2 and are not available to newly added defendant No.2 under Order 22 Rule 4 (2) Civil Procedure Code. It has not been elaborated by plaintiff how additional written statement of new defendant No.2 will change the nature of defence. The right of filing of additional written statement under Order 22 Rule 4 (2) Civil Procedure Code is not the same as right to amend the written statement. These are two different situations. In judgment dated 5.7.2010 RFA No. 203 of 1999 titled Vir Vikram Sen and Ors. v. Smt. Parvati and others, it has been held as follows:- "On appraisal of the above case law cited by the learned counsel for the applicants, it is clear that the provisions of Order 22 Rule 4 (2) of the Civil Procedure Code do give a right to the applicant to take any defence appropriate to his character being a legal representative of deceased defendant. Such a course is open to the applicants, who were impleaded as legal representatives of defendant No.1. It is also clear from a perusal of the above decisions that the applicants cannot be permitted to raise new pleas suiting their character. However, the legal representatives of deceased defendant No.1 can raise only such objections as could have been taken by the deceased party himself. It is also clear from a perusal of the above decisions that the applicants cannot be permitted to raise new pleas suiting their character. However, the legal representatives of deceased defendant No.1 can raise only such objections as could have been taken by the deceased party himself. It has not been laid down that after the lapse of many years, these pleas cannot be taken by the applicants and the only condition is that these should be appropriate to their character as legal representatives." 8. The proposed additional written statement has already been filed by new defendant No.2. The plaintiff from the proposed additional written statement has not shown what pleas are beyond the scope of Order 22 Rule 4 (2) Civil Procedure Code nor it has been pointed out that any proposed plea now intended to be taken by new defendant No.2 was not available to original defendant No.2. In Vir Vikram Sen (supra), it has been held that lapse of some time is not a bar to file additional written statement under Order 22 Rule 4 (2) Civil Procedure Code. No prejudice will be caused to plaintiff if additional written statement filed by newly added defendant No.2 is taken on record subject to payment of costs. The plaintiff will get an opportunity to rebut the additional written statement. 9. In view of the above discussion, OMP (M) No. 18 of 2009 and OMP No. 630 of 2009 are allowed subject to payment of Rs. 3,000/- costs. The additional written statement filed by newly added defendant No.2 Udit Kanoi is taken on record. OMP No. 366 of 2009 is rendered infructuous in view of order passed in OMP (M) No. 18 of 2009 and OMP No. 630 of 2009.