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Judgment
This revision petition raises a very interesting question for determination :
Whether a trial Court can a Dow a defendant to file an additional written statement in rebuttal to the written statement of the other defendant?
Parties are closely related to each other. Respondents 1 and 2 are the brothers and petitioner is the son of respondent No. 2. The controversy
centers round a relinquishment deed dated 1871980 purported to have been executed by respondents No. 2 in favour of respondent No. l
relinquishing a portion of House No. 1771situatedinMohallaRagunath pure, Jammu. The petitioner, son of respondent No. 2, filed a suit in the trial
Court seeking declaration that this deed was void and inoperative. While respondent No. l filed his written statement in the suit, respondent No. 2
was set exparte parte. It, however, appears that he was later a flowed to file his written .statement in which he admitted the claim of
plaintiffpetitioner and made some supporting averments. This prompted respondent No.l to file an application before the trial Court seeking leave
for filing the additional written statement to set up his defence against the stand taken by respondent No. 2. This application was allowed by the
trial Court by order dated 741994 against which this revision petition is directed.
Mr. Wazir, learned counsel for the petitionerplaintiff assailed the order impugned on the plea that the trial Court had no competence to permit an
additional written statement filed by respondent No. 1 against the written statement filed by respondent No.2. According to him, there could not be
a written statement against a written statement as such a concept was not countenanced by the provisions of order VIII Rule 1 C.P.C. He
contended that the written statement could be filed only as against the plaint of the plaintiff and not against the written statement of the defendant.
On merits, he submitted that the trial Court had passed an unreasoned order allowing respondent No. 1 to file his written statement without
referring to the circumstances which wanted the Court to grant the leave.
Mr. Sharma, learned counsel for respondent No. 1 pointed out that order W Rule 1 only required a defendant to present a written statement of
his defence. It did not postulate a written statement against the plaint alone. He submitted that a defendant could set up his defence both against a
plaint and even against a written statement of another defendant where such written statement collusively admitted the claim of the plaintiff to the
detriment of the aggrieved defendant taking new pleas which could not be replied in the earlier written statement.
Both sides cited AIR 1992 Delhi 162, AIR 1993 Orissa 141, AIR 1980 M.P. 8 and 1986 K.L.J.632 for and against.
It would be advantageous to reproduce the relevant provisions before adverting to the examination of the rival contentions. Order W Rules 1
and 9 C.P.C. read thus :
Written statement: (1) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written
statement of his defence.
Subsequent pleadings. no pleading subsequent to the written statement of a defendant other than by way of defence to setoff counter claim shall
be presented except by the leave of 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.
Dealing with the first contention that a written statement is available against the plaint only, it seems to be emanating from a misconception and
misappreciation of the provisions of order VIII Rule 1 C.P.C. A plain reading and a common understanding of this provision does not suggest so.
It significantly uses the expression ""the written statement of his defense"" which is of wide amplitude and leave a defendant free to present his
statement of defence against a claim contained in any pleading, be that a plaint or the written statement of a codefendant who collusively or through
manipulation supports or admits the claim of a plaintiff.
It is true a written statement is usually presented by a defendant to meet the claim of the plaintiff contained in a plaint. This is so because a
Defendant is invariably called upon to set up his defence against the case of the plaintiff. But this cannot hold true in all situations and
circumstances. There can be cases and situations where a Defendant is confronted with a claim from a codefendant. This is possible in a collusive
or manipulative suit. It would be unjust to block the defence of a Defendant in such cases on the specious plea that a written statement is required
to be filed only against a plaint. Holding so would be to shut out the defence of a defendant for all times to come. Therefore, it cannot be laid down
as a rule that a Defendant can file his written statement against the plaint only.
Having said so, it still becomes necessary to survey the parameters within which an additional written statement can be allowed to be filed by the
Court. Order VE rule 9 is the only guiding factor in this regard. It lays down an important rule of pleading and provides that no pleading
subsequent to the written statement by the defendant other than by way of a defence to a setoff shall be presented except with the leave of the
Court. In other words, it creates a bar to the filing of subsequent pleadings by a defendant save otherwise with the leave of the Court.
Consequently the law vests enormous discretion in the Court to grant or refuse the leave which is required to be exercised judiciously. Where the
trial Court, in the facts and circumstances of a given case, is satisfied that a party, wanting to file additional statement, has shown sufficient
circumstances in support, it would naturally allow the application. But, where ft finds that ft is sought to be presented to improve upon the case of
the defendant or to fill up the gaps and lacunae left in the first written statement submitted, or were it points to pleas and facts which appear
inconsistent with the original written statement, it would refuse the permission also keeping in regard the provisions of order VI rule 17. The later
provision only furnishes a cushion and does not control exercise of discretion under order Vffl rule 9. The inescapable conclusion, therefore, is that
a trial Court is competent to grant or refuse leave for filing an additional written statement by a party defending upon the facts and circumstances of
the case. The Court, however, is certainly under an obligation to give reasons and refer to circumstances to support its order. Where the Court
fails to give reasons and to point to the circumstances, the order would not sustain.
The Judgments referred to by the rival counsels, in my view, are not relevant to the point in issue because these cover situations where an
additional written statement was required to be filed against the plaint and do not furnish any guidance in the matter.
I according hold that there is no bar for a defendant to seek leave of the Court to file an additional written statement against the written
statement of a codefendant, who, admits the claim of a plaintiff and makes additional averments prejudicial to the defence of such defendant. Not is
there any provision in the Code of Civil procedure which mandates that a written statement of a defendant defence can be presented against the
plaint only. However, where a trial Court feels inclined to grant leave to defendant to file an additional written statement against the written
statement of a codefendant, in the peculiar facts and circumstances of the case, it must give reasons and show circumstances in support of the
order.
Coming to the merits, it is a matter of record that respondent No.l filed his first written statement, before respondent No. 2. As such there was
n o occasion for him to set up any defence against what respondent No. 2 would say in his written statement. It is also the common case that
respondent No. 2, the father of petitionerplaintiff, has admitted his son's plaint and has taken some pleas in his written statement. It was for the trial
Court to see and examine all this and to pass an order supported by reasons. However, a perusal of the order impugned shows that the Court has
failed to do so while allowing the application of respondent No. 1. The order, therefore, deserves to be set aside and is hereby set aside. The trial
Court is directed to consider the matter afresh and pass appropriate orders on the application of respondent No.l in light of the observations made
in this Judgment.
Record be returned to the Court below without delay. Parties though their learned counsel are directed to appear before the trial