- (1.) THE petitioner has filed this revision petition under s. 115 C. P. C. against the order dated 21. 5. 1994 passed by the learned Addl. Civil Judge No. 1, Jodhpur, by which, the learned Addl. Civil Judge dismissed the application filed by the plaintiff-petitioner under s. 151 C. P. C.
(2.) THE material facts to be noticed for the disposal of this revision petition are as follows : THE plaintiff-petitioner filed a suit for administration against the defendant non-petitioners and one Aishan, who expired during the pendency of the suit. On his death, the plaintiff-petitioner moved an application under O. XXII, r. 4 C. P. C. read with s. 151 C. P. C. stating therein that the defendant No. 2 Aishan expired on 6. 6. 1991 in Jodhpur and she had not left anybody else as her heir except the plaintiff and the defendants, who are already on record. It was, therefore, requested that the name of Mst. Aishan be deleted from the title of the suit. THE application of the plaintiff-petitioner was allowed. THE petitioner then submitted a fresh cause title and for making consequential amendments in the suit, the plaintiff moved an application under O. VI, r. 17 C. P. C. and that application was allowed. THE plaintiff filed the amended plaint. THE defendant was asked to file the written statement in view of the amended plaint. THE plaintiff-petitioner has stated that in the amended written statement, the defendants drastically changed the written statement and incorporated several pleas which were not taken in the previous written statement. In Para 4 of the revision petition, the plaintiff-petitioner has detailed such pleas taken by the defendant, which were not taken in the previous written statement filed by the defendants. THE plaintiff-petitioner therefore, felt aggrieved and filed an application under s. 151 C. P. C requesting the learned trial court for ignoring such pleas which are not compatible with the pleas taken by the defendants in the previous written statement. The non-petitioners contested the application and by taking shelter of the provisions of O. IX, r. 9 CPC, they pleaded that the defendants had unlimited right to make the amendment in the written statement and to incorporate the pleas which they think best for defending the suit of the plaintiff. The learned trial Court heard the arguments and relying on Ramchandra vs. Mahendra Singh (1), held that the defendant, under the provisions contained in O. VIII, r. 9 CPC cannot be debarred from submitting the fresh written statement and taking the additional pleas. The learned trial court, therefore, dismissed the application filed by the plaintiff-petitioner. I have head the learned appearing for the petitioner and have carefully gone through the record of the case. The learned counsel appearing for the petitioner contended that the defendant was only required to file the amended written statement in sofar as the amendment in the written statement was necessiated directly by the amendment of the plaint. The defendant was, therefore, not authorised to enjoy unrestricted or unbriddled power to incorporate new pleas in the amended written statement. If the defendant wanted to raise certain new pleas in the written statement which were not directly related to the amendment made in the plaint, the defendant ought to have moved an application under O. VI, r. 17 CPC seeking permission of the court to raise certain additional pleas in the written statement. The learned counsel has placed strong reliance on Thakkar Babulal Dayashanker vs. Mohta Natwarlal Kalu- ram and Anr.
(3.) IN Thakkar Babulal's case (supra), the Gujarat High Court examined the provisions of O. VI, r. 7; O. VIII, r. 9 CPC and held that a defendant has got a right when he is permitted to file his written statement to the amended plaint, to have his say only with respect to the matter introduced by amendment and no further. The learned counsel, therefore, argued that this revision petition be allowed and the impugned order be set aside after notice to the opposite party. I have considered the matter. A similar question arose for determination before this Court in Ramchandra's case (supra ). In that case, after filing of the amended plaint, the trial Court vide order dated 21. 9. 1977 has specifically men- tioned that the written statement to the amended plaint was to be submitted by the defendant-petitioner on October 17, 1977. It was noticed by this Court that while passing the above order, the trial court did not restrict the right of the defendant petitioner to file reply to that portion of the plaint which was incorporated by way of amendment. However, after examining the provisions of O. VIII, r. 9 CPC, this Court held that the right of the defendant-petitioner to file the additional written statement to the amended portion of the plaint was not restricted. In this connection, two cases of the Punjab High Court were also noticed and examined. In Girdharilal vs. Krishna Dutt (3), a question arose whether the additional written statement should be confined to the additional part of the plaint only or it is open to the defendant to raise new pleas while filing a written statement to the amended plaint. On those facts, the Punjab High Court observed as under : ". . . . . there is no rule of law, statutory or otherwise, which restricts or limits the defendant when he is called upon to file a written statement to an amended plaint, to contest the plaintiff's claim, to any particular pleas. The general scheme of the Code of Civil Procedure and the policy underlying the law of pleadings does not suggest any such restriction and the counsel. . . . . " The another case which was relied on in Ramchandra's case (supra) was New Bank of India vs. Smt. Rajrani In that case also, the amendment of the plaint was allowed and when the amended plaint was put in, the defendant was permitted to file a fresh written statement, if so desired. The written statement was filed and thereafter the case was fixed for replication. In the written statement, so filed, certain pleas were apparently included which were inconsistent with the pleas in the earlier written statement. An objection was raised on behalf of the plaintiff that except in so far as the amendment in the written statement was necessitated directly by the amendment of the plaint, no other variation in the amended written statement of the defendant in conflict with the earlier statement should be permit ted. It was held that in the absence of any restriction placed by the trial Court, the defendant cannot be debarred from putting a fresh written statement by taking additional pleas to the amended plaint filed in pursuance of the order of the trial court. ;