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2018 DIGILAW 84 (GAU)

Habibur Rahman (Md. ) v. Aminul Haque (Md. )

2018-01-17

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : A.K. Goswami, J. Heard Mr. N. Dhar, learned counsel appearing for the petitioner. None appears for the respondents. 2. The petitioner filed a suit, being Title Suit No. 32/2014, in the court of learned Munsiff No. 1, Morigaon. praying for declaration of right, title and interest and confirmation of possession of the suit land measuring 2 Bigha 5 Lecha covered by Dag No. 333 under periodic Patta No. 55, situated at village Borthal Kacharigaon, Mouza Moirabari; for injunction restraining the defendants from disturbing and enjoyment and possession of the plaintiff over the suit land, etc. 3. The petitioner and the respondent No. 1/defendant No. 1 are brothers, being sons of Late Azimuddin. 4. The case of the plaintiff is that he had purchased 3 Katha of land, out of the aforesaid 1 Bigha 5 Lecha, by registered sale deed No. 1760/1988, 10 Lecha by registered sale deed No. 1845/1988, and 1 Katha 15 Lecha by registered sale deed No. 2000/1995. 5. The defendant No. 1 is also the Secretary-cum-Headmaster of the defendant No. 2, i.e., Kacharigaon M.E. Madrassa. Defendant No. 3 is the President of the Managing Committee of the aforesaid school. In the suit, defendant Nos. 1, 2 and 3 filed a written statement on 09.09.2014. In paragraph 16(i) of the said written statement, it is stated that the Madrassa is situated over a plot of land measuring 2 Bigha 10 Lecha of land out of 10 Bigha 17 Lecha covered by Dag No. 333, Periodic Patta No. 55 of Village Borthal Kacharigaon and the said plot had been donated by the defendant No. 1 to the said Madrassa from his own share. Subsequently, on 13.11.2015, defendant No. 1 filed a petition praying for allowing the defendant No. 1 to file additional written statement. By an order dated 30.01.2016, the learned trial court allowed the said prayer on the ground that the defendant No. 1 had not come forward with a new case except furnishing details about the suit schedule property. It is against the said order dated 30.01.2016 that this application under Article 227 of the Constitution of India is filed. 6. Mr. By an order dated 30.01.2016, the learned trial court allowed the said prayer on the ground that the defendant No. 1 had not come forward with a new case except furnishing details about the suit schedule property. It is against the said order dated 30.01.2016 that this application under Article 227 of the Constitution of India is filed. 6. Mr. Dhar submits that, as pointed out by defendant No. 1 himself, there are 11 legal heirs of Late Azimuddin and in the written statement filed as he had not indicated any thing as to how he acquired 2 Bigha 10 Lecha of land out of the aforesaid 10 Bigha 17 Lecha, it is apparent that defendant No. 1 is trying to raise a new ground of claim which is not permissible to be included in an additional written statement. He has further submitted that, at the most, defendant No. 1 may file an application for amendment of the written statement and if such amendment application is filed, the same has to be considered on its own merits. He has placed reliance in the case M/s. Gannon Dunkerley and Co. Ltd. v. Steel Authority of India Ltd., Rourkela, reported in AIR 1993 Orissa 141. 7. In the petition filed for permitting the defendant No. 1 to file additional written statement, a plea is taken that all the sons of Azimuddin did not get equal share in the suit Patta and Dag and that the daughter of Late Azimuddin did not take her share in the suit Patta and that the defendant no. 1 became the owner of 2 Bigha 10 Lecha of land by way of "share and adjustment as well as partition among the legal heirs". It is also stated that these facts were not mentioned in the written statement, on which he had put his signature on good faith. 8. Order 6, Rule 7 of the CPC provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. 9. 8. Order 6, Rule 7 of the CPC provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. 9. Order 6, Rule 17, on the other hand, provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings 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 subject to the condition that no application for amendment shall be allowed after the trial had commenced unless the court comes to a conclusion that in spite of due diligence the party could not amend the written statement before commencement of the trial. 10. Order 8, Rule 9 provides that no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by 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 for presenting the same. 11. In Gannon Dunkerley and Co. Ltd. (supra), the Orissa High Court, while dealing with Order 8, Rule 9 CPC, had stated that though the rule invests the court with wide discretion enabling it to accept pleading subsequent to filing of written statement, same is not to be accepted where a new case or facts inconsistent with the original written statement are sought to be brought on record. It was further laid down that Order 6, Rule 7 CPC is also required to be considered in that context. 12. A bare look at the plea sought to be introduced by the defendant No. 1 goes to show that the same is a new plea as there was no reference to the same in the written statement already filed as to how he came to have right, title and interest in respect of 2 Bigha 10 Lecha of land. 12. A bare look at the plea sought to be introduced by the defendant No. 1 goes to show that the same is a new plea as there was no reference to the same in the written statement already filed as to how he came to have right, title and interest in respect of 2 Bigha 10 Lecha of land. Therefore, in view of the provision contained in Order 6, Rule 7 CPC, no such pleading, except by way of filing an amendment application, could have been sought to be raised. If there was some mention, an additional written statement could have been possibly allowed to be filed by way of elucidation. 13. Learned trial court failed to look into these aspects of the matter and exercised a jurisdiction not vested in it by law while allowing the petition so filed. Accordingly, I am of the considered opinion that a case is made out for interference with the impugned order. 14. Resultantly, the order dated 30.1.2016 passed by the learned Munsiff No. 1, Morigaon, in Title Suit No. 32 of 2014 is set aside. 15. The petition is allowed. No cost.