Delhi High Court
Suprio Mukherjee vs Bcd Electric Ltd on 12 September, 2017
$~7
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 242/2017 and CM No.31227/2017
% Date of decision : 12th September, 2017
SUPRIO MUKHERJEE ..... Appellant
Through : Mr. Saurabh Prakash and Mr.
Kunal Gosain, Advs.
versus
BCD ELECTRIC LTD ..... Respondent
Through : Mr. Gauhar Mirza and
Mr. Shivang Singh, Advs.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. The appellant assails an order dated 16th August, 2017 whereby
I.A.No.2566/2017, filed by the appellant under Order VI Rule 16 and
Order VIII Rule 10 read with Section 151 of the CPC in
CS(OS)No.577/2016, was dismissed.
2. It is submitted that the pleadings necessary for consideration of
this appeal are already on record and consequently, with the consent of
counsels for both sides, we have taken up this appeal for
consideration.
3. The appellant along with Pradeep Mehra and Dibyendyu
Bhattcharjee as co-plaintiffs, filed CS(OS)No.1856/2015 against its
employers seeking declaration of recovery of money on issues relating
to their employment with the respondent as the sole defendant.
4. The record placed before us shows that by an order dated 19 th
September, 2016, the ld. Single Judge accepted an application being
I.A.No.3600/2016, which was filed by the respondent herein, under
Order VII Rule 11 of the CPC seeking rejection of the plaint
essentially on the ground that there was misjoinder of parties
(plaintiffs) as well as causes of action by the plaintiffs inasmuch as
each of the plaintiffs had independent causes of action against it. The
ld. Single Judge applied provisions of Rule 8 of Order II of the C.P.C.
and issued the following directions :
"(a) An application will be filed seeking to amend the plaint
in the present suit so as to re-cast it as a suit by Plaintiff No.1.
The reliefs in respect of which court fees has been paid have
already been set out in the prayer.
(b) two fresh suits be filed: one, in respect of the claim of
Plaintiff No.2 and another in respect of claim of Plaintiff
No.3."
5. So far as court fees was concerned, the appellant/plaintiff was
exempted from payment of separate court fees inasmuch as the
composite court fees on the claims of the three plaintiffs stood affixed
on the plaint in CS(OS)No.1856/2015.
6. In purported compliance with this order, the appellant herein
filed CS(OS)No.577/2016.
7. The respondent herein filed a written statement which was
objected to by the plaintiff by way of an application being
I.A.No.2566/2017 under Order VI Rule 16 and Order VIII Rule 10
read with Section 151 of the CPC. It was contended by the
appellant/plaintiff that a voluminous written statement urging pleas
which had not been taken up before and contrary to the stand in the
written statement filed in CS(OS)No.1856/2015 had been taken up by
the defendant. This application was considered by the ld. Single
Judge and came to be rejected by the order dated 16 th August, 2017.
The ld. Single Judge did not take a view on the objection of the
appellant but merely stated that the grounds on which the application
rested were insufficient to reject the written statement filed by the
defendants. Liberty was given to the appellant to take its pleas in its
response to the written statement by way of a replication.
Aggrieved by this order, the present appeal has been filed.
8. Before us Mr. Saurabh Prakash, ld. counsel for the appellant
primarily relies on the provisions of Rule 7 of Order VI of the CPC
which mandates that "No pleadings 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.".
9. Ld. counsel for the appellant has drawn our attention to the
tabulated summarization compiled by it of the written statement dated
2nd November, 2015 in CS(OS)No.1856/2015 and the written
statement filed to the plaint by the respondent in the new suit being
CS(OS)No.577/2016. We have also carefully heard ld. counsel for the
appellant as well as examined this extract prepared by him.
10. On a comparison of the two written statements, in the written
statement in CS(OS)No.577/2016, the defendant has merely taken
additional pleas which are in the nature of explanations and objections
premised on factual assertions already made by the respondent in its
earlier written statement. The appellant is objecting also to mere
summarization by the respondent of the effect of the documents which
admittedly stand placed on record in the earlier suit. No new ground
of claim or allegation of fact inconsistent with the previous pleading
of the respondent appears to have been made by the respondent.
11. In view of the above, we are unable to agree with ld. counsel for
the appellant on the objections to the pleadings in the written
statement in CS(OS)No.577/2016 which have been raised by him.
12. Mr. Gauhar Mirza, ld. counsel for the respondent has
additionally pointed out that the appellant took no objection when the
written statement was first filed.
13. Ld. counsel for the respondent has also pointed out that in view
of the order dated 19th September, 2016 of the ld. Single Judge, the
appellant was directed to file a fresh suit and he has filed a fresh
plaint. This plaint has been separately registered as a suit and a fresh
number was assigned to it. As such, it was open to the defendant, who
was filing a fresh written statement, to take all pleas as are available to
him in law.
14. Inasmuch as we are unable to find any merit in the submission
of ld. counsel for the appellant that the pleas in the written statement
are in the teeth of the prohibitions under Rule 7 of Order VI of the
CPC, we are not inclined to consider these objections raised by the
respondent to this appeal.
15. It is made clear that so far as the prior pleadings of the
respondent are concerned, all consequences in law are available to the
plaintiff on the basis of admissions made or stand taken therein.
16. We are informed that the suit is fixed for framing of issues on
20th September, 2017.
17. We accept the request of ld. counsel for the appellant for
extension of time to file a replication which request is not opposed by
ld. counsel for the respondent. The period for filing a replication by
ld. counsel for the appellant is therefore extended by six weeks from
today. The date of 20th September, 2017, already fixed for framing of
issues, shall consequently stand extended.
18. This appeal is dismissed in the above terms.
In view of the dismissal of the appeal, the pending application
does not survive for adjudication which is accordingly dismissed.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
SEPTEMBER 12, 2017
aj
