1982 PLP 585 (CLC)

‑‑ O. VI, r. 17‑Written statement, amendment of‑Defendant entitled to raise additional pleas in amended written statement‑Held, such additional pleas in no circumstances to be contradictory to original plea‑[Pleadings]. Badrudduja for Plaintiffs. M. G. Dasta it for Defendant This is an application under Order VI, rule 16, C. P. C. for striking off certain parts of the amended written statement which according to the plaintiffs have been unauthorisedly and illegally added in the written statement. The plaintiff filed a suit for partition of the property and rendition of account. After the parties had led the evidence and before the arguments bad concluded the plaintiffs made oral request to amend the plaint by adding relief of possession. This request was granted by an order dated 2nd April, 1981, and the operative part is in the following terms :‑ "In the circumstances I allow the oral request of the plaintiff for amend ment of the plaint for adding the relief of possession but subject to the question of limitation to be decided at the time of arguments. The amended plaint will be filed within two weeks and amended written statement will be filed within three weeks thereafter. The case will come up for framing further issues on 17‑5‑1981, on which date it will also be decided, after perusal of the amended pleadings, whether any further evidence is to be recorded or not." The plaintiff filed the amended plaint in which the relief of possession was added. The defendant filed amended written statement to which the plaintiff raised objection that the entire written statement has been changed and that inconsistent pleas have been raised which the plaintiff seeks to be struck off. In the first written statement the defendant had pleaded that as a nomi nee of the deceased Sharif she is entitled to the entire property. In the evidence the defendant inter alia endeavored to establish that the property was gifted to her and that she has purchased the property. In the amended written statement the defendant has introduced all these pleas and has stated that a few days before his death the deceased had gifted the said property to the defendant, which was accordingly transferred in her name. It was also pleaded that the deceased plaintiff as well as Mahmoodi Begum had relinquished their shares, if any, in the property and the plaintiff has no right to claim any share in the property. In the written statement paragraphs 1, 3 and 6 of the plaint were admitted but in the amended statement they have been denied. Mr. M. G. Dastagir the learned counsel for the defendant has contended that as the defendant was permitted to file amended written statement without any reservation she was entitled to raise all such pleas which possibly the defendant could have taken at the time of filing the original written statement, together with any additional plea necessitated due to amendment in the plaint. The learned counsel has relied upon A I R 1960 Ph.

575. It has been contended that as there was a general order without any condition or restriction to file the written statement the defendant could file a completely new written statement. The contention of the learned counsel does not seem to be correct. The plaintiff while amending the plaint had sought to add one relief for possession without in any manner amending the averments and facts stated in the plaint. Only a relief for possession was added. The nature of the suit and its character was not changed. In the circumstances it is to be seen how far a defendant can amend his written statement. It is correct that Order VI, rule 17, C. P. C. does not strictly apply to the filing of the amended written statement but the principles enunciated therein wilt surely be applicable. A I R 1960 Punjab relied upon by the learned counsel for the defendants is completely distinguishable on facts. It is well settled that without the permission of the Court no party shall be allowed to resile from the admissions made in the pleading. The defendant in the circumstances could have restricted herself to such pleas which were not contradictory of inconsistent with the plea raised in her first written statement. Mr. Badrudduja, the learned counsel for the plaintiffs has contended that the defendant should have restricted only to the amended part of the written statement without making any addition in the other portion of the written statement. This is a very limited view of the scope provided by the Code of Civil Procedure. Although the C. P. C. does not restrict or make any provision for filing amended written statement but as stated earlier the principles of Order VI, A rule 17, C. P. C. will be applicable and further the provisions of Order VIII, rule 9, C. P. C. provide for filing additional written statement only with the permission of the Court. In the present case the defendant was allowed to file amended written statement with specific permission to raise the question of limitation. In the absence of any other condition in the order the defendant could not be allowed to violate the rules of pleadings and file a completely new written statement, which may be contradictory to the state ments made in the earlier written statement. How can it be possible to allow a defendant to file two written statements which may be contradictory to each other cause by filing the amended written statement the first written statement is not scraped off. In. her amended written statement the defendant has taken contradictory pleas. Previously she was claiming title by virtue of the nomination now she is pleading a subsequent gift and relinquishment. Ordinarily if the defendant would have applied for amendment of written statement for raising these defences the same would not have been allowed. A defendant while filing an amended written statement is entitled to raise any additional plea which may not have been incorporated in the first written statement but in no circumstance should such additional plea be contradictory a to the original plea. In view of this discussion the defendant is directed to file a proper amended written statement in which all those allegations of the plaint which had been admitted should be retained in the same manner and any contradictory plea as stated in the order should also be deleted from the written statement. The defendant should file a proper written statement within four weeks. M. Y. H. Application allowed.