Patna High Court
Nagendra Pandey vs Abhimanyu Kumar Pandey on 7 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.777 of 2023
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Nagendra Pandey S/o Late Rambasawan Pandey R/o Village-Shitalpur
Chakiya, P.O.-Sitalpur, P.S.-Dighwara, Distirct-Saran, Bihar, 841221.
... ... Petitioner/s
Versus
1. Abhimanyu Kumar Pandey S/o Late Nawal Kishore Pandey R/o Village-
Shitalpur Chakiya, P.O.-Sitalpur, P.S.-Dighwara, District-Saran, Bihar,
841221
2. Abhishek Kumar Pandey S/o Late Nawal Kishore Pandey R/o Village-
Shitalpur Chakiya, P.O.-Sitalpur, P.S.-Dighwara, District-Saran, Bihar,
841221
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rupesh Kumar, Advocate
Mr. Nishant Sinha, Advocate
For the Respondent/s : Md. Nadim Seraj, Advocate
Mr. Shahbaj Alam, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 07-04-2025
Heard learned counsel for the petitioner as well as
learned counsel for the respondents.
2. The petitioner is aggrieved by the order dated
27.06.2023
passed by learned Sub Judge-I, Sonpur, Saran at
Chapra in Partition Suit No. 381 of 2000 whereby and
whereunder the learned Sub Judge allowed the petition dated
04.08.2022 filed by the plaintiff through which a prayer was
made by the plaintiff to pass order on application dated
24.03.2003 and rejoinder dated 09.04.2003.
3. Learned counsel for the petitioner submits that the
petitioner is defendant no.6 before the learned trial court and the
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
respondents are plaintiffs of Partition Suit No. 381 of 2000. In
the said partition suit, defendant no.1 Mostt. Dulari Devi filed
two written statements, first written statement on 02.08.2002
and the second written statement on 02.09.2002. Learned
counsel further submits that the impugned order is not legal and
has been passed in mechanical manner and the same is fit to be
quashed. The learned trial court did not consider that original
defendant no.1 Mostt. Dulari Kuwar and his younger son,
namely, Shailesh Kumar Pandey, who are defendant no.3, were
living together and after institution of the partition suit, they
filed their joint written statement on 02.08.2002. Thereafter,
under the influence of the original plaintiff, defendant no.1 filed
a different written statement. On 24.03.2003, another application
was filed by defendant no.1 in collusion with plaintiff for
rejecting her first written statement. This petitioner filed a
rejoinder on 09.04.2003. The law does not provide for filing of
second written statement and hence second written statement
should have been rejected by the learned trial court. The
defendant no.1 did not seek any leave or permission from the
court for filing the second written statement. The parties have
led their evidence on the basis of first written statement of the
defendant no.1 and the petitioner would be greatly prejudiced if
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
second written statement is allowed to be taken on record
discarding the first written statement. Learned counsel further
submits that moreover this orders have been passed after 20
years of the filing of the application and written statement and
allowing the second written statement without deciding the
application dated 24.03.2003, is bad in the eye of law. Learned
counsel referred to Order 8 Rule 9 of the Code of Civil
Procedure (for short 'the Code') which deals with subsequent
pleadings. Learned counsel submits that no pleading subsequent
to the written statement of a defendant other than by way of
defence to a set-off or counter claim shall be presented except
with the leave of the court. In the present case, the defendant
no.1 had not taken any leave of the court. Learned counsel
further submits that application under Order 8 Rule 9 of the
Code cannot be treated as one under Order 6 Rule 17 of the
Code as both are contextually different as held in the case of
State of Rajasthan vs. Ikbal reported in AIR 1999 Raj 169.
Learned counsel also refers to the case of Douglas vs. Collector
of Banaras reported in (1851) 5 MIA 271, wherein it has been
held that the additional written statement should not set up a
totally new case or state facts as direct variance with the original
written statement so as to completely change the issue in the
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
case. In the present case, the defendant no.1, in collusion with
plaintiff, has made up an entirely different or new case. Learned
counsel further submits that even if any leave is granted for
additional written statement, the same does not mean leave to
treat the subject matter afresh or to ignore the earlier written
statement and refers to the case of TB. Dayashanker vs.
Kaluram reported in AIR 1978 Guj 94 and Kedar Lal vs. Ram
Prakash reported in (1999) CLT 1 (FB). Thus, the learned
counsel submits that the impugned order is not sustainable and
the same be set aside.
4. Learned counsel appearing on behalf of the
respondents opposes the submission made on behalf of the
petitioner. Learned counsel for the respondents submits that
there is no infirmity in the impugned order and this fact becomes
clear from perusal of the statement of defendant no.1 recorded
under Order 18 Rule 16 of the Code. In her statement, the
defendant no.1 has categorically stated that she did not put any
thumb impression on the document of written statement and has
stated that she and her son have not filed any written statement.
Learned counsel further submits that if no written statement was
filed by defendant no.1, there is no question of filing any second
written statement as it is her only written statement on the
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
record. The same thing was clarified by the learned trial court
vide the impugned order. Learned counsel further submits that
the learned trial court has passed the impugned order taking into
account all the relevant facts and provision of law and the
impugned order does not require any interference by this Court.
For the aforesaid reasons, the authorities cited by the learned
counsel for the petitioner are not applicable in the facts and
circumstances of the case.
5. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. No doubt
the Code of Civil Procedure does not provide for filing of two
written statements though subsequent pleadings by way of
additional written statement could be taken on record with the
leave of the court. However, in the present case, the chronology
is quite important. Just one month after filing of the first written
statement, second written statement was filed. First written
statement is said to have filed on 02.08.2002 and one month
thereafter the second written statement came on record with
claim of the defendant no.1 that the first written statement was
not her written statement. Further development has also taken
place and an application has been moved on behalf of the
plaintiff for examination of defendant no.1 as special witness
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
under Order 18 Rule 16 of the Code and the said application was
allowed and the defendant no.1 was examined as a witness in
the case and the same was not challenged as submitted by the
learned counsel for the petitioner on instruction. If the said order
was not challenged, the deposition made therein becomes
relevant. In her deposition, the defendant no.1 has stated that she
or her son did not file any written statement. Obviously she is
talking about the written statement which has been filed on
02.08.2002. At the same time, in the same deposition she has
stated that defendant no.6 has taken his signature on a number of
papers for getting her old age pension. If the first written
statement is disowned by the defendant no.1, effectively there is
no written statement of defendant no.1 on record and filing of
the subsequent written statement could not be said to be a
second written statement of defendant no.1. Therefore, the
learned trial court proceeded in the right direction and there is
no error of jurisdiction. Hence, the impugned order dated
27.06.2023 passed by learned Sub Judge-I, Sonpur, Saran at
Chapra in Partition Suit No. 381 of 2000 is affirmed.
6. Accordingly, the present petition stands dismissed.
7. Since it is quite an old matter of the year 2000, the
learned trial court is directed to expedite the proceeding since
Patna High Court C.Misc. No.777 of 2023 dt.07-04-2025
the matter has been coming up for final argument as it appears
from the impugned order and disposed it of at the earliest and
preferably within three months from the date of
receipt/production of a copy of this order.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 10.04.2025
Transmission Date NA
