A subsequent pleading even if taken on file under Rule 9 of Order VIII cannot be in violation of Rule 7 of Order VI of the Code. Nor could it be so contended. Hence Ext.P2, additional written statement notwithstanding that it was taken on file could not raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the petitioner in the
original written statement. Position may be if petitioner had amended his original written statement to incorporate an inconsistent plea notwithstanding the decision in the previous litigation. Such a situation is contemplated by Rule 7 of Order VI itself which states that any new ground of claim or allegation of fact inconsistent with the previous pleadings cannot be made except by amendment (of the original written statement). In that view of the matter I am persuaded to think that notwithstanding that the additional written statement has been taken on file, petitioner could not have under the guise of subsequent pleadings raised any new ground of defence or made allegations of fact inconsistent with the pleadings in the original written statement. In short, by filing the additional written statement petitioner could not raise a plea which was inconsistent with the contentions already taken in the original written statement. The decision of the Andra Pradesh High Court in Bullemmayi v. Venkatareddi (1990 (2) KLT S.N.72) is supportive of the above view.
8. No doubt, a material proposition of fact alleged by one party and denied by the other, gives rise to an issue. But I am persuaded to think that it has to be in tune with the tenability of the pleading under Rule 7 of Order VI of the Code. The court is not required to raise an issue based on a plea which is against the mandate of Rule 7 of Order VI of the Code. Viewed in that line I do not find any infirmity in the learned Sub Judge refusing to frame additional issue on the new ground or inconsistent plea taken by petitioner in the additional written statement in violation of Rule 7 of Order VI of the Code
Kerala High Court
K.S.Ramachandran vs K.S.Anantharaman on 6 December, 2010
Refusal to frame additional issue as to the revocability of a licence pleaded by petitioner in his additional written statement (which the court below received) and to issue a commission to assess value of the building is under challenge in this petition under Article 227 of the Constitution. Challenge is to the order passed by learned Sub Judge, Palakkad on I.A.Nos.4094 of 2009 and 4146 of 2009 in O.S.No.613 of 1991. That is a suit filed by the respondent for recovery of possession of the building on the strength of title claimed by him and alleging that he permitted petitioner to stay in the building in the suit property. Respondent claimed to have revoked the permission and sought for recovery of possession. Petitioner filed written statement denying claim of respondent. Later he filed Ext.P2, additional written statement with application to receive the same contending that building in the suit property was constructed with his funds also, he has spent money for its improvement to the tune of more than `.25 lakhs and thus there is a licence coupled with transfer of property which is not revocable. Petitioner filed Exts.P3 and P4, I.A.Nos.4094 of 2009 and 4146 of 2009 to raise additional issue regarding revocability of the licence and to appoint an Advocate Commissioner as aforesaid. It would appear that learned Sub Judge did not dispose of those applications. Petitioner approached this Court with W.P.(C) No.782 of 2010. This Court by judgment dated May 26, 2010 directed learned Sub Judge to dispose of the said applications. Pursuant to that, after hearing OP(C) No.611/2010
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both sides learned Sub Judge disposed of Exts.P3 and P4, applications by Ext.P6, order. Learned Sub Judge held that issue regarding revocability of licence coupled with interest does not arise in the suit and hence there is no necessity to frame additional issue. Dismissal of the application for appointment of commission followed. Learned counsel for petitioner contends that refusal to frame additional issue pursuant to the contention raised in the additional written statement is a refusal to exercise jurisdiction conferred on the learned Sub Judge under Rule 1 of Order XIV of the Code of Civil Procedure (for short, "the Code"). Learned counsel has referred me to Rules 1 to 3 of Order XIV of the Code as to how and when issues are to be framed and what all materials are looked into for framing issues. It is contended that a contention raised in the additional written statement may be inconsistent with the plea originally taken but, that does not take away the necessity to frame an issue regarding the contention raised. When a material proposition of fact or law is alleged on the one side to support the claim made and, that material proposition of law or fact is denied by other side in support of his defence it gives rise to an issue and the court is bound to raise an issue regarding that, it is contended. Learned counsel has placed reliance on the decisions inBank of India v. James Fernandez (1987 (2) KLT 236), Velayudhan Nair v. Narayanan Namboodiri (1987 (2) KLT 1020), Kalimuthu v. Kanji (1993 (2) KLT OP(C) No.611/2010
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1006), R.B.Bharatha Charyulu v. R.B.Alivelu Manga Thayaru (AIR 1996 Andra Pradesh 238) and Baldev Singh and others v. Manohar Singh and another ([2006 ] 6 SCC 498).
2. Learned counsel for respondent contended that issues are to be framed in relation to the matters in controversy between the parties and on which parties are required to adduce evidence. Contentions raised in the additional written statement cannot be looked into. On the facts of the present case no controversy can arise as regards the plea raised by petitioner in the additional written statement in view of the earlier decisions between the parties which have become final and in such a circumstance learned Sub Judge was not bound to frame issue regarding that.
3. Rule 1 of Order XIV of the Code states that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Sub-rule (2) says what are material propositions. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Rule 3 says on what all materials the court is required to frame issue. The court may frame issues from allegations made on oath by parties or by any person present on their behalf or made by the pleaders of such parties or, allegation made in the pleadings or in answers to interrogatories stated in the suit or the contents of documents produced by either party. Rule 2 of Order XIV of the Code OP(C) No.611/2010
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required the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue subject ofcourse to the provisions of Sub-rule (2) of Rule 2 which states that where issues both of law or fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force and for that purpose may, if it thinks fit postpone settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue. The decisions relied on by learned counsel for petitioner throw light on what exactly are material fact or law and when and under what circumstances court is required to frame issues. In Bank of India v. James Fernandez the question considered was whether the court has to enter a finding on all issues when an issue regarding limitation of the suit was involved. In Kalimuthu v. Kanji, in paragraphs 6 and 7 what is highlighted is that court is required to frame issues if it involved material proposition of fact or law asserted by one side and denied by other side. In Arundhati Mishra v. Sri Ram Charitra Pandey ((1994) 2 SCC 29), in paragraph 3 the Supreme Court held that it is open to the parties to raise even mutually inconsistent pleas in their written statement. In Baldev Singh and others v. Manohar Singh and another, in paragraph 11 it is held that adding a new ground of defence or substituting or altering a defence OP(C) No.611/2010
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does not raise the same problem as adding, altering or substituting a new cause of action and hence even inconsistent plea is permitted in the written statement. There, question considered was whether amendment of written statement to incorporate a plea which the plaintiff claimed to be inconsistent with the original plea taken by the defendant was permissible. In the present case question is whether on the facts and circumstances of the case learned Sub Judge is justified in not framing an additional issue based on the contentions raised in Ext.P2, additional written statement which it is not disputed before me was received by learned Sub Judge. To decide that, it is necessary to refer the facts of the case as well, in short.
4. In Ext.P1, plaint respondent claimed title over the suit property including the building thereon and sought eviction of petitioner on the strength of revocation of the permission granted to the petitioner to occupy the said building. Ofcourse that claim of respondent was denied by petitioner in his original written statement. Then came Ext.P2, additional written statement where petitioner claimed that his funds also was used for construction of the building in the suit property and since that amounted to transfer of interest in immovable property the licence is not revocable. In the original written statement there is a specific contention raised by petitioner that the building was constructed by the father of petitioner and the respondent using his funds. It is not disputed before me that nowhere in the original written statement petitioner had a contention that he had any role in construction of the building in the suit OP(C) No.611/2010
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property. Instead contention taken is that the building was constructed by father of the parties. It is against that plea that in Ext.P2 he raised a contention that the building was constructed with his funds as well and hence there is a transfer of interest which made the licence irrevocable.
5. It is not disputed that between the parties hereto there was a suit for partition concerning certain other items of properties which according to the respondent belonged to them jointly. In that suit, (O.S.No.286 of 1991 filed by respondent) petitioner filed written statement and then an additional written statement seeking partition of the suit property involved in the present case as well raising the contention that the building was constructed by their father. In fact trial of the present suit O.S.No.613 of 1991 was stayed under Section 10 of the Code on account of pendency of O.S.No.286 of 1991. Contention raised by petitioner in the additional written statement in O.S.No.286 of 1991 that the suit property is partiable failed. The Second Appeal filed in this Court also failed. Following that, petitioner tried his luck in R.P.No.29 of 2005 which was dismissed on 28.09.2007 holding that the building in plaint C schedule therein (suit property herein) exclusively belonged to the respondent. Learned counsel for respondent contended that the said order was challenged before the Supreme Court in Special Leave Petition which ended in a dismissal on the ground of delay and on merit. Thus, in the previous proceedings between the parties it was the contention of petitioner that the building in the suit property was constructed by their father and hence is partiable. Petitioner admittedly lost that OP(C) No.611/2010
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claim in a finding that the suit property includes the building exclusively belonged to the respondent. Indisputably, the same contention was raised in the original written statement filed in the present case. It is as against all these, that in Ext.P2, additional written statement petitioner came up with a case that his funds also has been invested for construction of the building in the suit property and hence there is a transfer of property which made the licence irrevocable.
6. True, court below has accepted Ext.P2, additional written statement to come on record but, question is whether merely because the additional written statement was taken on file the court is bound to frame an issue regarding the contentions raised in the additional written statement in the circumstances stated above. No doubt, Rule 9 of Order VIII of the Code permits the court to receive subsequent pleadings and that has been done in the present case. Rule 7 of Order VI of the Code reads:
"Departure:-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."
7. A subsequent pleading even if taken on file under Rule 9 of Order VIII cannot be in violation of Rule 7 of Order VI of the Code. Nor could it be so contended. Hence Ext.P2, additional written statement notwithstanding that it was taken on file could not raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the petitioner in the OP(C) No.611/2010
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original written statement. Position may be if petitioner had amended his original written statement to incorporate an inconsistent plea notwithstanding the decision in the previous litigation. Such a situation is contemplated by Rule 7 of Order VI itself which states that any new ground of claim or allegation of fact inconsistent with the previous pleadings cannot be made except by amendment (of the original written statement). In that view of the matter I am persuaded to think that notwithstanding that the additional written statement has been taken on file, petitioner could not have under the guise of subsequent pleadings raised any new ground of defence or made allegations of fact inconsistent with the pleadings in the original written statement. In short, by filing the additional written statement petitioner could not raise a plea which was inconsistent with the contentions already taken in the original written statement. The decision of the Andra Pradesh High Court in Bullemmayi v. Venkatareddi (1990 (2) KLT S.N.72) is supportive of the above view.
8. No doubt, a material proposition of fact alleged by one party and denied by the other, gives rise to an issue. But I am persuaded to think that it has to be in tune with the tenability of the pleading under Rule 7 of Order VI of the Code. The court is not required to raise an issue based on a plea which is against the mandate of Rule 7 of Order VI of the Code. Viewed in that line I do not find any infirmity in the learned Sub Judge refusing to frame additional issue on the new ground or inconsistent plea taken by petitioner in the additional written statement in violation of Rule 7 of Order VI of the Code and, since on the OP(C) No.611/2010
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facts of the case no controversy as to the ownership of building existed between the parties. In that view, there was no necessity to appoint an Advocate Commissioner to assess value of the building. I find no reason to interfere with the orders passed by the learned Sub Judge. Petition is therefore dismissed.
THOMAS P.JOSEPH,
Judge.
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