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2013 DIGILAW 1441 (PAT)

Ashok Kumar v. Chandra Bhawanani

2013-12-11

AHSANUDDIN AMANULLAH

body2013
ORAL ORDER 1. Heard Mr. Ajit Narayan Sinha, learned counsel for the petitioners and Mr. S. D. Sanjay, learned counsel for the respondents. 2. The present application under Article 227 of the Constitution of India is directed against the order dated 27.02.2013 passed in Title Suit No.439 of 2008 by the Subordinate Judge – III, Patna by which the petition filed by the petitioners for permission to file additional written statement, cross-examine the witnesses of the plaintiffs on new facts and also to adduce evidence on the basis of additional written statement has been rejected. 3. The respondents were plaintiffs in Title Suit No. 439 of 2008 which was for declaration of title in which the petitioners were the defendants. Upon the suit being admitted and summons being sent, the petitioners appeared and also filed their written statement. Thereafter witnesses were examined on behalf of both the parties and arguments were in progress and the case was then to be posted for judgment when the petitioners-defendants filed an application to the effect that the copy of the plaint received by them along with the summons was a different version of the actual plaint of the suit. Thus they prayed that they may be given an opportunity for filing additional written statement, cross-examine the witnesses of the plaintiffs on new facts and also adduce evidence on the facts and basis of the additional written statement. The Court by the impugned order had dismissed such petition. 4. Learned counsel for the petitioners submits that though they had filed their written statement and also participated in the trial by cross-examining the plaintiffs witnesses and also getting their witnesses examined but this fact of having received a copy of the plaint which was different from the real plaint of the suit, could not earlier be detected by them and thus under bona fide impression the application was filed. Learned counsel submits that in view of the same, since in the copy received by the petitioners there were only 25 paragraphs whereas the plaint filed in the Court had 30 paragraphs, i.e., 5 paragraphs were missing from the plaint received by them, they ought to be given a chance to respond to the averments made in those paragraphs by way of filing additional written statement and also cross-examine the witnesses of the plaintiffs with regard to the new facts and also adduce evidence on the basis of the additional written statement. Learned counsel submits that the petitioners would be prejudiced and would be put to irreparable loss if the prayer is not allowed. Learned counsel has argued that Order V Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) requires that every summon shall be accompanied by a copy of the plaint. In the present case, when a copy of the plaint was sent with the summon, the very next stage of the proceedings including validity of service gets vitiated for the reason that the document which was sent along with summons was not the plaint as contemplated under the Code. Learned counsel submits that prejudice would be caused to him in the sense that during arguments when the extra paragraphs of the original plaint would be required to be answered by him, all those facts narrated in those paragraphs would be deemed to have been accepted by the petitioners as they had not replied to the same for the simple reason that those paragraphs were never present in the copy of the plaint received and served on them. Learned counsel submits that by way of example, if paragraph no. 22 of the copy of the plaint which was received by him is compared with paragraph no. 27 of the original plaint which relates to the cause of action having arisen for the suit, as per the copy received by the petitioners the last date mentioned is 06.10.2008 whereas in the plaint filed before the Court it is 10.11.2008. Thus, it is submitted that there being difference, the petitioners are in a disadvantageous position and it has not been caused due to any laches on their part but because of the conduct of the respondents from which the petitioners be protected. Thus, it is submitted that there being difference, the petitioners are in a disadvantageous position and it has not been caused due to any laches on their part but because of the conduct of the respondents from which the petitioners be protected. Learned counsel submits that the stage at which such objection was raised cannot be said to be belated for the reason that it was beyond their expectation that such a glaring error would be committed by the respondents which cannot be brushed aside as being a minor discrepancy and the proceedings which are governed by the Code, any provision made therein should not be given a go by. 5. Learned counsel appearing for the respondents-plaintiffs submits that the timing of the application reflects the motive behind raising such a plea which clearly is mala fide for the reason that the suit being of the year 2008, the application has been filed only in the year 2013 and that too after the witnesses from both the sides had been examined and arguments had begun. 6. Learned counsel submits that the plea of the petitioners being unaware of the discrepancies in the plaint cannot be accepted for the simple reason that as per the law which has also been followed in the present case on behalf of the plaintiffs, the examination-in-chief of witnesses was done by filing an affidavit making those averments which are a reflection of the averments made in the plaint itself. Once the same was done and, after service of copy on learned counsel appearing for the defendants, they also cross-examined the witnesses and only thereafter the plea was raised that the original plaint and the copy served on the petitioners were different, becomes immaterial unless it is shown that there were facts which were not mentioned or materially different in the two versions. Once all the facts had been stated in the copy served on the petitioners and they having cross examined the plaintiffs’ witnesses had also produced their witnesses, the purely technical and belated plea of not receiving the verbatim copy of the original plaint, cannot be a ground to put to naught whatever has happened during the entire trial of the suit as the same would in effect lead to a de novo and fresh trial. Learned counsel submits that each and every fact which has been mentioned in the copy of the plaint which has been filed before the Court is present in the copy sent to the petitioners. It is submitted that in fact there is a greater description in the copy sent to the petitioners inasmuch the same was the basic raw draft which was there on the computer of the learned counsel for the respondents-plaintiffs and the plaint which was actually filed was an edited version and only due to inadvertence, while taking out copies for sending the summons, the raw draft was mistakenly sent which in no way can be said to be a truncated or different version of the original plaint. Learned counsel with regard to the last date of cause of action being different in the two versions of the plaint, submits that the cause of action is a continuing event and since the original date of the first cause of action having arisen is the same, being 20.04.2008 and it had continued for a certain period, the original draft prepared in the computer was at early date, the last date as of then was mentioned in the copy, whereas by the time of filing of the plaint, due to passage of time the latest date was shown. However, in any view of the matter, according to him, the same has no bearing on the merits of the present matter since in the written statement filed by the petitioners, there is no reply or explanation relating to the cause of action, and thus the petitioners by pointing out to one date in isolation and out of context cannot derive the benefit to make out a case for de novo trial. Learned counsel has referred to Order VIII Rules 3 and 5 of the Code and submits that as per the requirement under the Code relating to written statements, the denial by defendants has to be specific with regard to each allegation of fact. Learned counsel has referred to Order VIII Rules 3 and 5 of the Code and submits that as per the requirement under the Code relating to written statements, the denial by defendants has to be specific with regard to each allegation of fact. Thus, he submits that all the facts which are in the copy of the plaint submitted to the Court being present in the copy sent to the petitioners, who are the defendants, and then filing of a written statement by them on that basis, no prejudice whatsoever can be said to have been caused to them as they are required to reply specifically with regard to each allegation of fact and not with regard to each and every paragraph of the plaint. Thus, it is submitted that in any view of the matter, the respondents-plaintiffs cannot be said to have derived any undue or extra benefit by serving a copy of the plaint which only differed to the extent of the format of what has been filed before the Court and not in its content. Learned counsel submits that the law cannot be so insensitive and over technical so as to undo a full fledged exercise of trial in a civil matter by the Court concerned and put the stage back to square one merely on the ground that the copy of the plaint served on the defendants –petitioners did not tally with the copy filed before the Court. Learned counsel submits that by now the Courts have settled the principle that for any issue brought before the Court, it shall also be tested on the basis of as to whether it has caused prejudice to the party who is raising the plea so as to determine whether it is grave enough for the Court to interfere and wipe out whatever developments have taken subsequent to the cause of action having arisen for the party complaining of such breach. In the present case, it is submitted that the party having contested the case for many long years during which time, there being regular necessity for inspection of the records, this fact of the plaint which was filed before the Court being different from the copy which was served on the petitioners not being detected, cannot be taken to be true on its face value. Learned counsel further submits that the Court below has rightly rejected such plea moreso in view of the fact that the petition filed by the petitioners in which a pure question of fact was raised where it was disputed that the copy of the plaint served on them was different to the one which was actually filed before the Court, the same was not supported by any affidavit. It is submitted that the law of pleading requires that any issue of fact has to be supported by an affidavit by the person making the averments before which the Court of law can take cognizance. In that view of the matter also, the petition filed by the petitioners, according to learned counsel for the respondents, was not fit to be taken note of. 7. Having considered the rival contentions, this Court is of the opinion that though the contention of learned counsel for the petitioners with regard to the law requiring a copy of the plaint to be sent along with summons cannot be diluted or waived but such a provision has to be seen in context of the facts and circumstances of a particular case, especially at the stage when such a plea with regard to its violation is raised. In the present case, it is not in dispute that along with the summons a document was sent which was in the nature of a plaint and the petitioners, being the defendants, had also filed their written statement pursuant to the same. From comparison of the two, learned counsel for the petitioners has not been able to point out any single fact which has not been mentioned in the copy of the plaint received by him compared to the one available with the Court. Only the dates mentioned with regard to the cause of action, to the extent that in the original plaint it is said to have arisen on 20.04.2008 and lastly on 10.11.2008 whereas in the copy sent to the petitioners, the dates are 20.04.2008, 05.05.2008 and lastly on 06.10.2008, in the opinion of this Court, the said paragraph even as per the copy received by the petitioners not having been replied, it cannot be deemed that prejudice has been caused. Moreover, in view of the fact that the cause of action having arisen on 20.04.2008 and continuing, the last date of cause of action being 06.10.2008 or 10.11.2008 cannot be said to, in any way, cause prejudice or advantage to either of the parties. The issue is immaterial in view of the relief sought and nature of the suit. It would be useful to indicate here that there is no difference in the relief portion of both the versions of the plaint. It is also clear that the Court cannot but take note of the fact that the examination of witness having been made on the basis of written affidavited examination-in-chief, whatever facts were present in the plaint having been reduced in black and white in such affidavits, copies of which were duly served on the other side, any objection that they were put to disadvantage or there being fresh facts which caused prejudice to one side or caused any undue advantage to the other side, cannot be sustained. The stage of the suit at which such plea was raised also leads to the inescapable presumption that motive behind the same was dilatory so as to somehow ensure that whatever had taken place during the trial is washed away and a de novo trial begins. The case having been at the argument stage cannot be lost sight of either. 8. In view of the discussions made hereinabove, this Court does not find any error in the order impugned. Accordingly, the application stands dismissed. It goes without saying that the parties shall have full liberty to raise all points available to them in accordance with law at the time of arguments which shall be considered on its own merits by the Court below. 9. Before parting with the order, in view of the fact that the suit being of the year 2008 and at the stage of arguments, the Court below is directed to conclude the same and pass final orders latest within a period of two months from the date of production/receipt of a copy of this order before it.