Tek Chand Chitkara vs Union of India (UOI) and Others

R.S. Pathak, C.J.—This is a Plaintiff''s revision petition against an order of the learned Senior Subordinate Judge, Simla, permitting an amendment of the written statement and framing additional issues.

The Plaintiff instituted a suit for possession. Upon the filing of the plaint, the Defendants filed their written statement. The trial court framed a number of issues, and after deciding some of them it held that it had no jurisdiction and rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure. An appeal by the Plaintiff was dismissed by the learned District Judge and thereafter a second appeal was dismissed by a learned single Judge of the High Court. On Letters Patent Appeal, a Division Bench of the High Court held that the trial court had jurisdiction to try the suit and while allowing the appeal it remanded the case to the trial court for a fresh decision on certain specific issues. When the case was taken up by the trial court on remand the Plaintiff applied for amendment of the plaint. The amendment was allowed. But the Defendants when filing their amended written statement did not merely add to the original written statement those pleadings which were relevant to the amendment made in the plaint but they substantially re-cast the original written statement in respect of other pleadings also. The Plaintiff objected, contending that the Defendants should be confined to amending the written statement in respect of those matters only which were relevant by way of reply to the amendment made in the plaint. The objection has been rejected by the learned Senior Subordinate Judge by his order dated March 1, 1972. And by reason of the controversy now arising out of the amended plaint and the amended written statement he has framed a number of additional issues.

Two contentions have been raised for the Plaintiff. One is that the learned Senior Subordinate Judge erred in permitting the Defendants to amend their written statement beyond the pleadings necessary for replying to the amendment made in the plaint. The other is that the learned Senior Subordinate Judge had no jurisdiction to frame additional issues when the remand order passed by the High Court in the Letters Patent Appeal directed the trial court to give a fresh decision in respect of the limited issues specified by it.

On the first contention, it seems to me that the Plaintiff is right. There can be no doubt that if a Plaintiff is allowed to amend his plaint a Defendant is entitled to amend his written statement. But the scope of amendment available to the Defendant must relate to the amendment effected in the plaint. The occasion for permitting the Defendant to amend the written statement is provided by the amendment of the plaint, and the whole purpose of allowing the Defendant to amend the written statement is to afford him an opportunity to set out his defence in reply to the amended pleading introduced in the plaint. It must be remembered that after the plaint is filed and the Defendant files his written statement in defence he exhausts his right to do so, and he cannot subsequently amend the written statement except by leave of the Court. To permit the Defendant to do so otherwise could result in defeating Order 8 Rule 9 of the Code. Now, it is one thing to amend the written statement in reply to an amendment of the plaint; it is quite another thing to amend the written statement by introducing entirely fresh pleadings not warranted by the amendment in the plaint. To amend the written statement in the latter case the Defendant must satisfy requirements which proceed beyond those arising upon a mere amendment of the plaint. I am in agreement with the view taken in Dittu Ram Vs. Amar Chand, It may be mentioned that the Punjab High Court has taken a contrary view in Girdharilal Vs. Krishan Datt, Subsequently the view taken by that court was explained in New Bank of India Ltd. Vs. Smt. Raj Rani and Another, and the law was stated thus:

On behalf of the Respondent it has been urged with certain amount of force that in the case in hand it must be deemed that the Court below had not reopened the entire trial but had merely directed the Plaintiff to add to the relief clause an additional relief and that the Defendants were also accordingly permitted merely to answer to this additional plea and not to put in an absolutely fresh written statement. Whether or not the Court below intended to adopt this procedure is far from obvious and its order is certainly not clear and explicit in this respect. I can see that the amendment in the plaint is of a formal nature, but in the absence of any restriction placed by the Court below, I am unable, as at present advised, to hold that as a matter of law the Defendant can be debarred from putting in a fresh written statement to a fresh plaint filed in pursuance of an unqualified order.

There may be a case where subsequent to the amendment of the plaint a Defendant may make out a case before the court for amending his written statement so as to enable him not only to introduce pleas in reply to the amendment in the plaint but also to introduce fresh pleas. So far as such fresh pleas are concerned, the court will consider, independently of the amendment effected in the plaint, whether the Defendant has made out a case for introducing such pleas in the written statement. The circumstance that the plaint has been amended is irrelevant, and the court will proceed to consider the prayer for introducing such pleas in the same way as it would an application for permission to amend the written statement had the plaint remained unaltered.

In my opinion, the learned Senior Subordinate Judge committed a jurisdictional error in permitting the Defendants to amend their written statement by introducing pleadings not necessitated by the amendment made in the plaint.

In regard to the second contention the Plaintiff is on un-sound ground. When the High Court retarded the case and directed the trial court to decide certain specified issues alone it was never in contemplation that the plaint would be amended subsequently and fresh points in issue would arise. The remand order was made in contemplation of facts and circumstances then existing. It was never the intention of the High Court to put the case into a straitjacket and totally ignore a changed context arising in the future. Upon amendment of the plaint and of the written statement, the trial court would be bound to consider whether further issues do not require to be framed. However, in the view that I have taken on the first contention, the additional issues presently framed by the trial court may not all arise; it will be necessary for the trial court to decide afresh what further issues, if any, do arise after the Defendant is permitted to amend his written statement in the light of the observations made above.

The revision petition is allowed. The order dated March 1, 1972, of the learned Senior Subordinate Judge, Simla, is set aside, and he is directed to permit the Defendants to amend their written statement in the light of the observations made above and to proceed thereafter in accordance with law. There is no order as to costs.