Bombay High Court
Shree Educational Trust And Anr vs Dombivli Shikshan Prasarak Mandal And ... on 12 February, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:7229
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.14246 OF 2024
Shree Educational Trust and Another ...Petitioners
vs.
Dombivali Shikshan Prasarak Mandal and Others ...Respondents
Mr. Shyam Dewani a/w. Mr. Chirag Chanani, Mr. Dashang Doshi i/b.
Dewani Associates, for the Petitioners.
Mr. S.C. Naidu a/w. Ms. Divya Yajurved i/b. Ms. Anjali Yajurved, for
Respondent No. 1.
CORAM : N. J. JAMADAR, J.
DATE : FEBRUARY 12, 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
parties, heard finally at the stage of admission.
2. The Petitioners - defendant Nos. 1 and 4 take exception to an
order dated 17th August, 2024 passed by the learned Civil Judge, Kalyan
whereby the Application (Exh. 92) preferred by defendant Nos.1 to 4 to
take on record and read the written statement filed by defendant Nos. 1
to 4 on 30th March, 2019 as written statement of the defendants to the
amended plaint, came to be rejected.
SWAROOP
SHARAD
PHADKE 3. Shorn of unnecessary details, background facts leading to this
petition can be stated as under:-
3.1 Respondent No. 1 is a trust registered under the Maharashtra
Public Trusts Act, 1950. The defendant No. 1, is also a public charitable
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trust. On 20th July, 2012 an agreement was executed between
respondent No. 1/ plaintiff and defendant No. 1 for construction of a
school on the property of the plaintiff, and operation and management of
the said school i.e. Prabhakar Desai International School, Dombivali (E),
(PDIS).
3.2 Disputes arose over the performance of the terms of the said
agreement between the plaintiff and defendant No. 1. On 24 th April, 2015
the plaintiff terminated the said agreement dated 20th July, 2012 and
revoked the license granted to defendant No. 1 to operate the said
school, w.e.f. 5th May, 2015.
3.3 Alleging breach of the terms of the contract to run and conduct
PDIS, the plaintiff instituted the suit for recovery of a sum of Rs.
9,30,95,060/-, along with interest @ 12% p.a. towards construction of
PDIS building and the entire project, directions to the defendants to
handover the affairs of the said school, to remove themselves from the
premises of PDIS and the consequential relief of injunction.
3.4 The defendants appeared in response to the suit summons.
Various interlocutory applications were filed in the said suit.
3.5 As the defendants did not file the written statement on 19th January,
2016, the plaintiff filed an application to pass "no written statement" order
against the defendants. On 3rd March, 2016, the learned Civil Judge
passed "no written statement" order against the defendants. On 29 th
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August, 2018, the plaintiff filed an application for amendment in the plaint.
The said application was allowed by an order dated 19 th January, 2019
subject to the payment of costs. Eventually, on 31st January, 2019, the
plaintiff amended the plaint.
3.6 On 30th March, 2019 an application was filed on behalf of the
defendants to condone the delay in filing the written statement sans the
signatures of the defendants. In the month of April, 2019, the defendants,
filed application to permit the defendants to file the written statement by
condoning the delay therein. By an order dated 29 th November, 2022 the
said application came to be rejected. In meanwhile, the plaintiff adduced
evidence of its first witness in the form of affidavit in lieu of examination in
chief.
3.7 On 9th March, 2023 the defendants filed another application for
setting aside the "no written statement" order (Exh.85). The said
application was also rejected by the learned Civil Judge by an order
dated 24th June, 2023.
3.8 The defendants carried the matter before this Court. By an order
dated 6th September, 2023, in Writ Petition No. 10917 of 2023, this Court
rejected the petition finding no infirmity in the order passed by the trial
Court. A Special Leave Petition (C) No. 22333 of 2023 preferred
thereagainst was also dismissed by the Supreme Court on 19th February,
2024.
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3.9 Undeterred, the defendants filed application (Exh.92), to read the
written statement which was tendered along with the application dated
30th March, 2019, as the written statement of the defendants to the
amended plaint. It was, inter alia, contended that post the amendment in
the plaint, the suit ought to have been posted for written statement of the
defendants to the amended plaint. Nonetheless, since the written
statement was tendered by the defendants, along with application dated
30th March, 2019, which was within 90 days from the date of amendment
in the plaint, the defendants were entitled in law to seek the relief of
reading the said written statement to the extent of amended plaint. If the
written statement is not read, even to this limited extent, the defendants
would suffer an irreparable loss.
3.10 The plaintiffs resisted the application.
3.11 By the impugned order, the learned Civil Judge was persuaded to
reject the application observing, inter alia, that the plaintiffs had already
amended the plaint before the defendant tendered an application for
condonation of delay in filing the written statement. The written statement
which was tendered along with the said application, also contained
pleading in relation to the amended portion of the plaint. Since the
application to set aside the 'no written statement order' and permit the
defendants to file written statement, was twice rejected by the trial Court
and the last order was upheld by this Court and Supreme Court, there
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was no substance in the contention on behalf of the defendants that they
were entitled to file additional written statement to the amended plaint.
4. Being aggrieved, the defendants have again invoked the writ
jurisdiction of this Court.
5. I have heard Mr. Shyam Dewani, the learned counsel for the
petitioners, and Mr. S.C.Naidu, learned counsel for the respondent No. 1.
6. Mr. Dewani, the learned counsel for the petitioners, strenuously
submitted that the defendants are entitled to file additional written
statement to the amended plaint, notwithstanding the fact that they had
not filed the written statement to the original plaint or their right to file
written statement stood foreclosed. Amplifying the submission, Mr.
Dewani would urge that the right to file additional written statement does
not emanate from the right to file the written statement. It is essentially
consequential to the amendment in the plaint.
7. As a second limb of the submission, Mr. Dewani would urge that
the interdict contained in the order VIII Rule 1 of the Code of Civil
Procedure, 1908 does not apply to the additional pleading in response to
the amendment in the plaint. Therefore, the aspect of delay in filing
additional written statement to the amended plaint is also of no
significance.
8. To buttress these submissions, Mr. Dewani placed a strong
reliance on the judgment of the Supreme Court in the case of Gurdial
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Singh and Others vs. Raj Kumar Aneja and Ors. 1, orders passed by
the Delhi High Court in the case of Raman Sharma vs. Prem Lata
Prabhakar and Ors,2 Himachal Pradesh High Court in the case of
Varinder Kumar vs. Santokh Singh3 and a judgment of this Court in the
case of Orchid Enclave Co.Op. Hsg. Society vs. Neelkamal Realtors
and Erectors India Pvt. Ltd. and Ors.4.
9. Mr. Dewani, the learned counsel for the petitioners, further
submitted that the substance of the matter ought to be taken into
account. Incontrovertibly, the written statement was tendered along with
the application dated 30th March, 2019. The said written statement forms
an integral part of the record of the trial Court. Thus, no prejudice would
be caused to the plaintiff in reading such portions of the said written
statement which deal with the averments in the plaint, incorporated by
way of amendment. This would also promote the cause of the decision of
the suit on merit. Thus, the learned Civil Judge committed a manifest
error in taking a hyper-technical view of the matter, urged Mr. Dewani.
10. Mr. Naidu, learned counsel for the respondent No. 1, stoutly
controverted the submissions on behalf of the petitioners. Mr. Naidu
would urge that the defendants have distorted the facts. The defendants
have approached the Court as if they are seeking permission to file
1 (2002) 2 SCC 445
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additional written statement in response to the amendment in the plaint.
However, the written statement which was tendered along with the
application dated 30th March, 2019 was, in fact, a composite written
statement to both the original and amended plaint. The said written
statement was tendered after the amendment was carried out on 31 st
January, 2019. It was that written statement which the trial Court, this
Court and Supreme Court declined to take on record.
11. Inviting the attention of the Court to the prayer in the instant
application to the effect that 'the written statement filed by the defendants
on 30th March, 2019 be read, recorded and exhibited and be considered
as written statement of the defendants to the extent of newly added
paragraphs and prayer by virtue of amendment carried on 30 th January,
2019' Mr. Naidu would urge that the entire endeavour of the defendant is
to resurrect the written statement, which stood dusted by the orders
passed by the Courts. Mr. Naidu, thus, submitted that the decisions on
which reliance was placed by Mr.Dewani, have no bearing on the
controversy in the instant case. Since the application has been filed after
conclusion of the oral evidence of the plaintiff, even otherwise, the prayer
does not deserve to be countenanced as it lacks both in diligence and
bonafide, urged Mr. Naidu.
12. In the narration of facts, I have elaborately noted the time-line, on
purpose. The core controversy that crops up for consideration is whether
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the defendant whose right to file the written statement stood forfeited and
the said order attained finality upto Supreme Court, is entitled to file
written statement, by way of consequential pleading, to the amended
plaint ?
13. The right of the Defendant to amend the written statement (already
filed) or file an additional written statement to deal with the averments in
the amended plaint can hardly be questioned. However, the extent of
and limitations on the said right to file additional pleadings deserve
consideration.
14. Once the Court permits amendment in the pleadings, the
opponent deserves an opportunity to meet the amended case or defence
as the case may be, as a matter of fair procedure. Generally, the
Defendant is granted an opportunity to file additional written statement
consequent to the amendment in the plaint. Naturally, the additional
written statement to be filed post amendment in the plaint, ought to be
confined to the matter which has been introduced by way of amendment
in the plaint. The additional written statement, therefore, cannot travel far
beyond the amended plaint, and introduce completely new matters which
were not adverted to in the amended plaint, or for that matter, in the
original written statement.
15. Two provisions of the Code, 1908 deserve to be noted. Under
Order VI Rule 7, it is provided that no pleadings shall, except by way of
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amendment, raise any new ground of claim or contain any allegation of
fact inconsistent with the previous pleadings of the party pleading the
same.
16. Order VIII Rule 9 of the Code, bars pleadings subsequent to the
written statement, save and except by way of defence to suit or counter
claim. It reads as under :
"9. Subsequent pleadings - No pleading subsequent
to the written statement of a defendant other than by way
of defence to set-off or counter claim shall be presented
except by the leave of the Court and upon such terms as
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 of not more than thirty days for
presenting the same."
17. The aforesaid provisions of the Code, if construed in juxtaposition,
would indicate that the amendment in the original written statement or the
additional written statement has to be essentially consequential to the
amended plaint. Lest, disguised as amendment in the written statement
or additional written statement, post amendment in the plaint, completely
new matters could be brought on record.
18. The decision of the Supreme Court in the case of Gurdial Singh
and Ors. (supra), on which reliance was placed by Mr. Dewani,
expounds the nature of the amendment in the written statement in
response to the amendment in the plaint and the limits thereof, in the
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following words :
"19. When one of the parties has been permitted to amend
his pleading, an opportunity has to be given to the opposite
party to amend his pleading. The opposite party shall also have
to make an application under Order 6 Rule 17 of the CPC
which, of course, would ordinarily and liberally be allowed. Such
amendments are known as a consequential amendments. The
phrase "consequential amendment" finds mention in the
decision of this Court in Bikram Singh and Ors. V/s. Ram Baboo
and Ors.5. The expression is judicially recognized. While
granting leave to amend a pleading by way of consequential
amendment the Court shall see that the plea sought to be
introduced is by way of an answer to the plea previously
permitted to be incorporated by way of amendment by the
opposite party. A new plea cannot be permitted to be added in
the garb of a consequential amendment, though it can be
applied by way of an independent or primary amendment.
20. Some of the High Courts permit, as a matter of practice,
an additional pleading, by way of response to the amendment
made in the pleadings by opposite party, being filed with the
leave of the Court. Where it is permissible to do so, care has to
be taken to see that the additional pleading is confined to an
answer to the amendment made by the opposite party and is
not misused for the purpose of setting up altogether new pleas
springing a surprise on the opposite party and the Court. A
reference to Order VI Rule 7 of the CPC is apposite which
provides that 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."
(emphasis supplied)
5 (1982) 1 SCC 485
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19. The decision of this Court in the case of Orchid Enclave Co-op.
Hsg.Soc. (supra), supports the submission of Mr. Dewani that
notwithstanding the failure of the defendant to file the written statement to
the plaint, the defendant is entitled to file written statement to deal with
the amended plaint. In the said case, this Court declined to allow the
Defendant No.10 therein to file written statement to the plaint in a
commercial suit, as the time had elapsed. However, the Court permitted
Defendant No.10 to file written statement to deal with the amended plaint,
observing that once the plaint was amended, the Defendant certainly
deserves an opportunity to deal with the amended portion of the plaint
only. The observations in paragraph 6 of the said order read as under :
"6. However, the question now only remains whether
Defendant No.10 can be allowed to deal with the portion of the
Plaint which has been amended only pursuant to the order
dated 30th August, 2022 and which amended Plaint was served
on Defendant No.10 on 15th September, 2022. To my mind,
once the Plaint was amended and amended Plaint was served
on Defendant No.10, Defendant No.10 certainly should be given
an opportunity to deal with the amended portion of the Plaint
only. This amendment was carried out by the Plaintiff and by
virtue of this amendment, the Plaintiff sought to bring on record
the statutory notices that were required to be served on
Respondent Nos.3 to 8. These notices have come on record for
the first time only by virtue of this amendment. It may be that by
allowing Defendant No.10 to deal with the amended Plaint (and
the new Annexures brought on record) there may be an overlap.
But merely because there is an overlap cannot dis-entitle
Defendant No.10 from dealing with the amended portion of the
Plaint. It is not in dispute that the time to file an additional
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Written Statement to the amended portion of the Plaint has not
expired as contemplated under Order VIII Rule 1 of the CPC
(insofar as it applies to Commercial Suits). This being the case,
I am inclined to grant leave to Defendant No.10 only to the
limited extent of filing a Written Statement dealing with the
amended portion of the Plaint. In other words, Defendant No.10
shall be entitled to file a Written Statement dealing only with
paragraph 8A of the Plaint and Exhibit-T collectively."
20. In the case of Raman Sharma (supra), a learned Single Judge of
the Delhi High Court, after adverting to the aforesaid pronouncement in
the case of Gurdial Singh and Ors. (supra), enunciated that the time
frame as provided under Order VIII Rule 1 of the Code would not be
applicable to the written statement filed by the defendant as
consequential amendment to amended plaint. The learned Single Judge
held that since the pleadings can be amended at any stage, time frame of
120 days as prescribed for filing of the written statement, becomes
inapplicable to the consequential amendment made to the written
statement. This is more so as the defence of the defendant is already on
record and it is only to the amendment allowed to the plaint that the
additional response is required.
21. Mr. Dewani laid emphasis on the aforesaid enunciation by the
Delhi High Court. Strenuous effort was made by Mr. Dewani to urge that
since the original written statement was tendered along with the
application dated 30 March 2019, and the said written statement formed
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part of record of the Court, and, there is no time frame for filing additional
written statement to the amended plaint, there is no impediment in
reading the portions of the written statement which deal with the
averments in the plaint introduced by way of amendment.
22. The aforesaid submission brings to the fore the question, can it be
said that the written statement which was tendered along with the
application dated 30 March 2019 formed part of the record of the Court ?
On first principles, I am afraid to accede to the submission of Mr. Dewani
that the written statement which was tendered along with the application
dated 30 March 2019 formed part of the record of the Court, despite the
application having been rejected by the trial court twice and the said
order having been attained finality upto the Supreme Court. Necessary
corollary of the rejection of the application to set aside 'no written
statement order' and take the written statement on record was that the
written statement so tendered was not taken on record and never formed
part of the record of the Court. Since the right of the defendant to file
written statement stood foreclosed, the said right could not have been
revived sans the order of the Court setting aside the said foreclosure.
23. Timeline, as noted above, is also of critical salience. Firstly, even
before the application for setting aside no written statement order and to
accept the written statement was filed, the Plaintiff had amended plaint
on 31 January 2019. Secondly and incontrovertibly, a copy of the
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amended plaint was also received on behalf of the Defendants. Thirdly,
and more importantly, written statement which was tendered by the
Defendants along with the said application dated 30 March 2019, was a
composite written statement. It deals with the averments in the original
plaint as well as the averments and prayers introduced by way of
amendment. Resultantly, what was declined to be taken on record was
the written statement to the amended plaint.
24. In the backdrop of these facts, I find substance in the submission of
Mr. Naidu that all those orders declining permission to the Defendants to
file written statement cannot be rendered nugatory by acceding to the
request of the defendants to now read the portions of the said written
statement (which is not part of the record of the Court), as written
statement to the amended plaint.
25. The matter can be looked at from another perspective as well. The
instant application came to be filed after dismissal of the SLP by the
Supreme Court. Even if the submission of Mr. Dewani that there is no
time frame to file additional written statement to the amended plaint, is
taken at par, yet the fact that a period of five years had elapsed from the
amendment in the plaint, cannot be lost sight of. This again underscores
the lack of diligence, bordering on negligence, on the part of the
defendants which resulted in foreclosing their right to file written
statement to the plaint.
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26. The conspectus of aforesaid discussion is that the Defendants
cannot be now permitted to urge that the written statement which was
tendered along with the application dated 30 March 2019 formed part of
the record and be read even to the limited extent as a consequential
pleading to the amended plaint.
27. Thus, no fault can be found with the impugned order. Resultantly,
the Writ Petition deserves to be dismissed.
28. Hence, the following order :
ORDER
1] The Writ Petition stands dismissed.
2] Rule discharged.
3] No costs.
(N. J. JAMADAR, J.)
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