But this does not and cannot the mean that the Court should allow liberty to the defendant to deal with the matter in an arbitrary manner and ignore the stand he had disclosed to the Court on the earlier occasion and plead something contrary to what he had done before.
IN THE HIGH COURT OF GUJARAT
Second Appeal No. 465 of 1971
Decided On: 29.03.1976
Thakkar Babulal Dayashanker Vs. Mehta Natwarlal Kaluram and Anr.
Hon'ble Judges/Coram:
N.H. Bhatt, J.
1. The question is whether a party to a suit can be permitted to raise subsequently a plea which is incompatible or inconsistent with the plea taken up on the earlier occasion in the earlier pleadings. The very gone, sis of the law of pleadings is that the Court and the respective parties should have full know of the case of both the parties so that the subsequent trial may proceed in that well defined channel and no prejudice Is caused to either of the sides by rambling and meandering course of teal. This very principle laid down in O. 8, R. 9 of the Civil P. C. Which reads as follows:-
"Rule 9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such term as the court thinks fit... "
This legislative mandate has been laid down in an imperative language which is too clear to call for my aid of canons of construction and the purpose underlying in that the parties must know as to what is the case of the other side which it is called upon to Meet.
5. The same conclusion can be had also from the equally mandatory provisions of O. 6, R, I Of a civil Procedure Code, which reads as under:
"Rule 7: No pleading shall, except by way of amendment raise any now ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same".
Order 6 of the Civil P. C. deals generally with the pleadings of both the plaintiff and the defendant and the legislative mandate quoted above is applicable both to the plaint and to the written statement. It is therefore clear that what has been stated once as an allegation of fact or as a ground of a claim or an attack has got to be stuck to by the parties and any change in that stand can be taken note of by the Court only by way of amendment which is permissible only under the established principles of law.
6. Mr. Shah, the learned Advocate, however, contended that whenever a plaint is amended by the plaintiff, a right accrues to the defendant to, file a written statement to the amended plaint, and once this right accrues to the defendant what is stated expressly or impliedly by the defendant in the earlier written statement would not bar his to take up whatever stand the said defendant likes, irrespective of the stand taken by him in the earlier written statement. Taken to its logical limits Mr. Shah's plea would mean that even if the defendant has admitted specifically or expressly anything in his earlier writ statement from the personal knowledge, it would be open to him in his second and subsequent written statement to withdraw the same without seeking the amendment of the earlier written statement and take up van an incompatible stand. In other words Mr.Shah's submission would come to this that a defendant would have a right to obliterate his earlier written statement from the record - in fact, the earlier statement remains on the record - if he so feels and it would not be open to the Court to have recourse to the earlier written statement to find out the stand taken therein in respect of a particular matter. In my view, this is absolutely abhorrent of the concept of law of pleadings as envisaged in the Civil P. C. In my view a defendant has got a right when he is permitted to file his writ statement to the amended plaint, to have has say only with respect to the matter introduced by amendments no further. Order 8, Rule 9 of the Civil Procedure Code in its latter part. No doubt, confers discretion on the Court to, requires statement from any of the parties and fix a time for presenting the same. It is already implicit in such powers that they are to be exercised its discretionary powers does so only to advance the cause of justice and such a power, assuming that it was exercised in this case, did not permit the defendant to change the whole front and raise a contention which was not consistent with the earlier stand taken by him. The fact that the Court served the defendant with a copy of the amended plaint and gave him a time to file additional written statement does not meant that the Court had given him liberty to treat the subject matter afresh in the manner he liked, ignoring the earlier written statement filed by him. As stated above, the Court's permission unless so expressed or otherwise shown, must be understood to have given him permission to file an additional written statement in respect of the amended portion and no further. It is, therefore not possible to subscribe to Mr.Shah's contention that the Court has required the defendant to file the additional statement, through there is nothing which the court required him to do that, and to hold further that the court given him liberty to give a go-bye to the free ride in the matter. No such permission or requirement can be attributed to the Court, much less by implication to the Court, much less by implication and Mr.Shah's submission on this score is difficult to be entertained.
7. Mr. Shah, however, in this connection, invited my attention to the judgment of the Punjab High Court in the case of New Bank of India Ltd.. v. Suit. Rai Rani w/o Jaikishan Dass reported in AIR 1966 Punj 162 which followed the earlier decision of the Punjab High Court referred to in AIR 19N P&H 575 (Giridharilal v. Krishan Datt). It cannot be gainsaid that the Punjab High Court has made certain observations, which would support the say of Mr. Shah. The Punjab High Court examined the case from different angle. According to the Punjab view, the crucial, test in deciding whether the fresh written statement should be confined to the amended portion of the plaint only, is of the true nature of the order passed by the Court when it permits a fresh plaint to be filed and according to that view, un law the Court had at that step specifically restricted the fresh plea to the amended material, it was perfectly open to the defendant to put in fresh written statement Untrammeled by his plea in his earlier written statement. In my estimation the view of the Punjab High Court does not take note of the mandatory provisions of O 6, R. 7 and Order 8, Rule 9 of the Court's power to permit the written statement is subject to the other provisions of law, namely, O. 6, R. 7 and subject to the general principles that under the law of pleadings a party is not permitted to blow hot and cold in different breaths. That is exactly what is prohibited by the enactment of the provisions of law of pleadings. I view the case from a different angle and unless there are words in the Court's order permitting the defendant to raise any ground he liked, uninhibited by what he had earlier stated by solemn affirmation before, the permission to file additional written statement must be confined to the additional matter alone, and no further. The view of the Punjab High Court, in my estimation, runs counter to the provisions of 0.6,R.7 and 0.8, R.9 of the civil P.C and with respects, I am unable to subscribe to the same. In this connection, Mr. Shah has also called to his aid the case of 'Chandra Kishore Das v. Babulal Agarwal,', MANU/OR/0024/1948 : AIR 1949 Ori 77. In that case it has been held that Order 8, Rule 9 enables the Court to require a written statement from any of the parties at any time. The authority proceeded to observe that after the plaint is amended it becomes the duty of the Court of call upon the defendant to file the additional written statement particularly after the newly added defendant had filed his written statement. I fail to comprehend how this authority buttresses the plea put forth by Mr.Shah that O.8,R.9 of the civil procedure code casts on the Court a duty to see that a newly amended material is relied on by the other side, and for that purpose the Court may call upon the defendant to file an additional written statement. But this does not and cannot the mean that the Court should allow liberty to the defendant to deal with the matter in an arbitrary manner and ignore the stand he had disclosed to the Court on the earlier occasion and plead something contrary to what he had done before.
8. If any support for the view which I have mentioned above is needed, recourse can had to be the case of Dittu Ram v. Amar Chand MANU/HP/0018/1961. In this judgment it has been laid down in a clear and categorical manner by the judicial Commissioner that a party does not have a right to amend a previous pleading without the permission of the Court and it would be a violating of the principles of pleadings and in general of provision of O.6,R.7 of the Civil Procedure Code in particular if on the amendment of the plant a defendant is allowed to put forward pleas which are not in answer to the fresh matter introduction by the amendment of the plaint are inconsistent with the pleas previously put forward.
9. Mr.Shah's submission, therefore, carried to its logical limits would confer on the defendant power to amend his written statement without recourse to the provisions of O.6, R.17 of the Civil Procedure Code under which amendment could be effected only if the Court, after examining the perspective of the case, grants the party specific permission. In this view of the matter. Mr.Shah's submission based on the authority of the Punjab High Court cannot be upheld.
10. Appeal dismissed.
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