Sumitra Sahai vs Arya Orphanage
1997 Latest Caselaw 774 Del

JUDGMENT

D.K. Jain, J.

(1) This is Defendant No. 1's application for striking out some portion of averments in plaintiff's replication, (filed by way of reply) to Defendant No. 1's amended written statement. The defendant claims that the said portion has been unauthorisedly added even after dismissal of plaintiffs application, being Ia No. 10438/96 (under Order 6 Rule 17 of the CPC), seeking permission to incorporate the same averments in her plaint, which was not permitted as the plea ran counter to the plaintiff's stand, being the basis of the suit. It is also alleged that the amended replication is contradictory to the earlier replication. The portion sought to be struck off, set out in para 15 of the application, reads as follows :- "IT is submitted that on Lala Narain Dutt's death the said property passed to his son and his widow in equal shares where the widow received a limited estate since Lala Narain Dutt expired prior to 1956. This limited estate in the widow's hands was converted to absolute property by the Hindu Succession Act, 1956. Lala Narain Dutt's widow Smt.Karam Devi expired intestate in the year 1964 and upon her death her absolute 50% share in the said property devolved by intestate Succession equally on her 4(four) children i.e., the Plaintiff, her two sisters and her brother under the Hindu Succession Act, 1956".

(2) The plaintiff admits having filed Ia 10438/96 for permission to amend the plaint to incorporate the aforenoted averments, now impugned, which was dismissed by the Court. She, however, opposes the defendant's present application on the plea that the defendant itself having incorporated some additional facts and averments in its amended written statement unauthorisedly, there is nothing to restrict her from incorporating new averments in the replication, and no exception can be taken to it.

(3) The controversy has arisen thus; The plaintiff in her suit, plaint para 5, as basis of the suit, claimed that she inherited the property in question, on the demise of her father Lala Narain Dutt in 1951 jointly with her mother, brother and two sisters. She, thus, claimed to be joint owner of 1/4th of the property. She later filed Ia 10438/96, seeking to plead that, in fact, she inherited the share in the property from and on the demise of her mother, who died in 1964 and not from her father, who died in 1951. This new stand was held to be a separate and distinct cause of action contradictory from the one which was pleaded in the original plaint. The Court observed that through the amendment, "the plaintiff now wants to completely give up the plea, which she had taken in the original plaint that she had inherited to the estate of Narayan Dutta. After giving up that plea she now wants to set up a totally new case that she did not inherit the estate on the death of Narayan Dutta, which was inherited by son and widow."

It was held that an amendment cannot be permitted as it would not only cause material prejudice but also result in irreparable loss to the defendant and will render the plea of limitation nugatory since as on the date of filing of the application, the claim for the cause of action sought to be pleaded would definitely be barred, if a fresh suit on that cause of action had to be filed. Accordingly, her application for amendment of the plaint was dismissed on 18 January 1996. This order has attained finality because the appeal filed against the order is stated to have been dismissed as withdrawn. In the written statement, defendants No. 1 and 12 (L&DO) had assailed the maintaibility of the plaintiff's suit, inter alia, on the plea of want of prior notice under Section 80 of the Code of Civil Procedure. To overcome this difficulty, the plaintiff filed an application (IA 10437/94) under sub-section (2) of Section 80, Cpc, seeking leave to prosecute her suit without complying with the requirements of Section 80, CPC. This application was dismissed by the Court on 6 April 1995, with a direction to strike out the name of Defendant No. 12 (L&DO) from the array of defendants, and file a corrected plaint. In compliance, the plaintiff filed an amended plaint. In view of the filing of the amended plaint, defendant No. 1 sought leave to file amended written statement as it was considered necessary. The Court permitted defendant No. 1 to file amended written statement. The plaintiff was also allowed to file replication to it. Defendant No. 1, in its amended written statement, without leave of the Court, made some additions in para I (ii) on page 2 and para (xxxvI) on page 12, of the amended written statement, to the effect that after the demise of Lala Inder Narain on 26 October 1994, Sh.V.P. Chaudhary, one of the members of the trust, was elected President of the Orphanage. The additional facts, incorporated in the amended written statement, and being relied upon to lay foundation for filing amended replication with the afore-extracted para have been set out by the plaintiff in her reply to the application and for the sake of ready reference are reproduced hereunder :- "....... when the said resolution was passed". "..... were the President and the Secretary respectively of the Orphanage. Lala Inder Narain breathed his last on 26.10.1994. After his death the said Shri V.P. Choudhary was elected as President of the Orphanage". and "..... was also one of the Members of the said Trust."

(4) The plaintiff says that in view of insertion of the above additional facts, in the amended written statement of defendant No. 1, she has a right to plead additional facts/averments in her replication and as such defendant's present application seeking expunction of the impugned averments in plaintiff's amended replication be dismissed.

(5) I have heard learned counsel for the parties at some length.

(6) The questions for determination are : 1) Whether the plaintiff can be permitted to include in her replication new facts not arising from the amended written statement which run counter to her original stand in the suit, permission to plead/incorporate which facts in the plaint sought for by her through Ia No. 10438/96 having been earlier declined by the Court; and 2) Can she, in spite of it, be permitted to do so merely because the defendant in its amended written statement has brought in some additional facts/averments which were not there in its earlier written statement.

(7) I am of the considered opinion that the plaintiff cannot be permitted to do so. What was disallowed through amendment of the plaint vide order dated 18 January 1996 cannot be brought in surreptitiously in a circuitous manner through averments in replication on the plea that the defendant has also made some unauthorised additions in its written statement. This is no ground to permit the plaintiff to take a new plea in her replication, which has been declined in order dated 18.1.96 as inconsistent to her original stand in the plaint.

(8) If the plaintiff was aggrieved on induction of additional facts/averments in the amended written statement, she could either apply under Order 6 Rule 17, Civil Procedure Code for striking out the impugned portions in the written statement or reply to them. But she cannot on this Count be permitted to introduce new matter in the replication, particularly when its induction in her plaint at her motion has already been disallowed. It is obvious that having failed in her attempt to incorporate the pleas on dismissal of her application under Order 6 Rule 17, Cpc, she wants to take advantage of the situation to induct them in the amended replication. It has not been shown that the additions made by the defendant constituted a departure from the stand in the earlier written statement. It is also not shown that the plea now introduced by the plaintiff in the replication has any nexus with or is by way of reply to the additions made by the defendant in its amended written statement. It is obvious, as infact conceded by Ld counsel for the plaintiff, that the afore-extracted objectionable portion of the amended replication, is not by way of reply to the additional facts incorporated in the amended written statement. On the contrary the impugned additions in replication purport to be entirely new grounds of claim, inconsistent to the original basis of the claim in the suit, incorporation whereof in the plaint having been disallowed, the same is not only unauthorised and in violation of the law of pleadings, but is also an abuse of the process of the Court. A plea inconsistent with the case set up in the plaint can never be permitted to be raised in replication.

(9) However, Mr.Shashi Vansh Bahadur, learned counsel for the plaintiff relied on two judgments of Punjab and Haryana High Court, in Jagdish Prasad Vs. Dhessi Ram (Deceased) 1977 Plr 670 and Naresh Kumar Vs. Om Prakash & Ors. 1989 (2) Rlr 603, in support of his contention that notwithstanding dismissal of her application (IA 10438/96) under Order 6 Rule 17, seeking incorporation of the impugned portion in the plaint she had a right to incorporate the same plea in her replication. The authorities relied upon by the plaintiff, do not say so. Merely because the defendant has made some innocuous additions in its amended written statement, filed by way of reply to amended plaint, which were not there in the written statement to the unamended plaint, does not, in the circumstances of this case, confer any right on the plaintiff to induct the impugned averments in her replication. The broad proposition laid down by the authorities relied upon by learned counsel for the plaintiff simply is, that once an amended plaint is filed a legal right accrues to the opposite party to file a fresh reply/written statement wherein new objections can, in the absence of exceptional circumstances or any statutory bar or special order of the Court at the time of allowing amendment of the plaint, be allowed to be raised by the defendants and their right cannot be restricted to the admissions made in the written statement to the unamended plaint. They are entitled to file fresh written statement wherein they may take a plea, which they or their predecessors have not already taken. Relying on it, the plaintiff seeks to justify her induction of the impugned portion in the replication, which, I am not persuaded to agree.

(10) A view, contrary to the Punjab authorities, relied on for the plaintiff, has infact been taken by this Court in Rukhsana Sultana Vs. Mahinder Kaur 1983 Rlr 776 and Jaimal Singh Vs. Chanan Devi 1985 Rlr (Note 25). In Rukhsana Sultana's Case, J.D. Jain, J (As he then was), agreeing with the views of Gujarat and Himachal Pradesh High Court on the point, in detailed judgment, noticing the conflicting views taken on the point by different High Courts, including the Punjab High Court, held that the defendant in answer to an amended plaint has no untrammelled right to give a totally different written statement from the one originally filed by him. The same view was taken in Jaimal Singh's case by Sultan Singh, J (As he then was), holding that a party is not at liberty to vary its earlier pleadings while replying to amended pleadings of the opponent without leave of the Court and if he does so the opponent can apply for striking out the unauthorised portion.

(11) I have given deep consideration to the two divergent views and feel that the view taken in cases dealt with by Punjab & Haryana High Court, with respect, is little too liberal and the view taken by this Court in the cases decided by it, referred to above, seems to be more appropriate and preferable.

(12) Jagdish Prasad's case (Supra) is based on Supreme Court's judgment in J.C. Chatterjee & Ors Vs. Sh.Srikrishna Tandon Air 72 Sc 2426 holding that under sub-Clause 2 (ii) of Rule 4 of Order 22 of the Code of Civil Procedure any person who is made a party as a legal representative of the deceased, in entitled to take any defense appropriate to his character as legal representative of deceased respondent, who could urge all contentions, which the deceased should have urged, except which were personal to the deceased and that legal representatives are free even to set up their own independent title, in which case they could be imp leaded, not merely as legal representatives, but also in their personal capacity, avoiding thereby a separate suit. Thus what the Supreme Court had held was that on plaint being amended the defendant/his legal heirs will be competent to make additions in the written statement raising new defenses to the suit. On this, the Punjab High Court held that once the plaint is amended, a legal right accrues to the opposite party to file a fresh written statement wherein new objections can be taken, in the absence of exceptional circumstances etc.. In Naresh Kumar's case (Supra), the Court followed Jagdish Prasad's case to hold that the petitioner having himself amended the petition could not be permitted to contend that the respondent should be restricted to controvert only the amended part of the plaint.

(13) The instant case is, however, entirely different and a converse case of exceptional category as per observations in Jagdish Prasad's case. The authorities relied upon by the plaintiff referred to above are inapplicable to the facts of the case. Herein the plaint was directed to be amended only to delete the name of defendant No. 12 from the array of defendants. The plaintiff's application (Order 6 Rule 17 CPC) for permission to insert a new plea inconsistent and contrary to the basic plea taken in the original plaint was dismissed. The induction of the impugned same plea by her in the replication cannot be justified on the ground that the defendant has also introduced unauthorisedly, some additional averments in the amended written statement. As noticed above, the additional facts incorporated in the amended replication have no nexus or relation to the said averments in the amended written statement. As noted above, a remedy on unauthorised induction by the defendant lay in praying for it being struck off but it per se, confers no right on the plaintiff to introduce any fresh plea in the replication, unless it be by way of reply to the new additions made in the amended written statement.

(14) Consequently, the impugned portion in the replication, quoted above, is directed to be struck off and note to this effect made against it in the margin of the replication.

(15) In the result, the application is allowed with costs quantified at Rs. 2,000.00.