BHANU DATT SHARMA Vs. UNION OF INDIA
LAWS(J&K)-1986-7-21
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 31,1986

Bhanu Datt Sharma Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THE revision under Section 115 of the Code of Civil Procedure has been directed against the order passed by the learned trial Court on October 30, 1985 in Civil Suit No. 328 of 1983 disposing of the application of the plaintiff and dismissing the same on the ground that the objections filed by the plaintiff against the filing of the additional written statement is not tenable
(2.) THE main grievance projected in the present revision petition and argued by the learned counsel for the petitioner mainly based on the interpretation of Order 8, Rule 9 as well as Order 6 Rule 17 of the Code of Civil Procedure. It has been pointed out that pursuant to the amendment of the plaint by adding a new plea about the service of notices on the respondents under Section 80 of Code of Civil Procedure, the defendants instead of filing the application under 6 Rule 17 of the Code of Civil Procedure to amend their pleadings by the order of the Court, in consequence of the amendment of the plaint filed an additional written statement raising the plea of limitation as well as of the jurisdiction, which was not taken earlier in the main written statement. Such a plea taken by the defendants being contradictory to the written statement filed under Order 8 Rule 1 of the Code of Civil Procedure, in answer to the plaint filed by the plaintiff cannot be allowed to be permitted in the absence of an application under Order 6 Rule 17 of the Code of Civil Procedure and no departure can be made from the earlier pleadings by the defendants except by way of amendment as provided under Order 6 Rule 7 of the Code of Civil Procedure. Learned counsel in support of his contention distinguishing the reliance placed by the learned trial Court on the authorities of the Punjab High Court discussed in the order placed his reliance on the Division Bench authority of the High Court of Himachal Pradesh reported in 1979 Simla Law Cases 254 (Shri Sawan Singh Vs. Radha Krishan), which are virtually ruled out by the Division Bench authority discussing the scope of Order 8 Rule 9 and of Order 6 Rules 7 and 17 of the Code of Civil Procedure. Learned counsel for the respondents in reply strongly placed his reliance on the provisions of Order 8 Rule 9 of the Code of Civil Procedure and that of Order 8 Rule 1 to support the order impugned.
(3.) ON examining the record and the order impugned and the Division Bench authority of the High Court of Himachal Pradesh cited above, I find that the authority is distinguishable on facts. The later part of Rule 9 of Order 8 empowers the Court to require a written statement or additional written statement from any of the parties without resort to the provisions of Order 6 Rule 7 or 17 of the Code of Civil Procedure. In the instant case the learned trial Court while considering the application for amendment of the plaint by his order dated March 3, 1985 kept the field open for the defendants to raise the plea by filing a written statement. This fact stands fortified by the subsequent order passed on 9 -4 1985, where the Court in its discretion after the filing of the amended plaint permitted the defendants to file the written statement. This fact indicates the exercise of power by the Court under the later part of the provisions of Rule 9 of Order 8 of the Code of Civil Procedure, which fully empowers the Court to direct any of the parties to file written statement or additional written statement at any time. This provision is not subservient the provisions of Order 6 Rule 7 or 17 of the Code of Civil Procedure, If this is to be interpreted in such a manner that in all circumstances the defendant shall have to file an application for amendment of the pleadings and the written statement, it will make the later part of provisions of Rule 9 of Order 8 of the Code of Civil Procedure un -workable. This is the cardinal rule of interpretation of law that a provision of law be interpreted in such a manner so as to make it workable in -conformity with the intention of the Legislature. The provision of rule 9 of Order 8 being independent does not curtail the discretion of the Court in asking the defendant to file the additional written statement. Thus in the facts and circumstances of the case, I find that the trial court duly exercised the discretion judicially in favour of the respondents/defendants by permitting them to file the additional written statement resorting to the later part of the provision of rule 9 of order 8 of the Code of Civil Procedure, the order impugned in the respondents revision does not call for any interference, the revision is accordingly dismissed summarily. The record of the trial Court be sent back forthwith. Parties through their counsel are directed to appear before the trial Court on 20th of August, 1986.;


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