Judgment:
ORDER
A. Pasayat, J.
1. Petitioner's application under Order 8, Rule 9 of the Code of Civil Procedure, 1908 (in short, the 'Code') having been rejected, this applicatidn under Section 115 of the Code has been filed.
2. Facts situation is as follows:
Opposite party as plaintiff has filed Money Suit No. 152 of 1988 in the Court of learned Subordinate Judge, Rourkela for realisation of Rs. 2,42,000/- with pendente lite and future interest against the petitioner who is defendant therein. Written statement was filed by the petitioner-defendant on 28-9-1980. Subsequently, ah application under Order 8, Rule 9 of the Code was filed by it for permission to file additional written statement. The grounds indicated in support of the application were that some relevant facts were left out and could not be mentioned in the written statement, due to non-availability of certain relevant documents in the office of the defendant. It was submitted that facts and submissions contained in the additional written statement were quite vital and relevant to the suit transaction, and subsequent pleading of the defendant shall in no way counter; differ or change the original plea taken in the written statement filed earlier and that defendant shall be seriously prejudicied unless it is granted a chance to defend its case properly by filing additional written statement. The petition was resisted by the plaintiff, on the ground that the entire substratum of dispute would be changed by acceptance of additional written statement. Learned Subordinate Judge refused leave to file the additional written statement. He highlighted the actual aspects in support of his order of refusal. The respective cases of parties as set out in the plaint and written statement as originally filed are to the following effect :
Plaintiff alleged that the defendant was given a contract for design, supply, constructing, testing and commissioning of six MGD capacity intake well and pump house with country fudual pumps on the left bank of river . Koel at Rourkela Steel Township. Before the expiry of guarantee period of those pumps and the pumping work, the pumps went out of order for which the plaintiff had to effect repairs by incurring expenditure of Rs. 78,670/-. Thereafter when it come to the notice of the plaintiff that pumps were not as per the specification of the contract, it issued a notice to the defendant and replaced pump at a cost of Rs. 6,87,150/-. Subsequently, an agreement was arrived at between the parties, wherein it was agreed that the defendant would bear the value of the pumps replaced and half of the repair costs. After adjustment defendant is liable to pay a sum of Rs. 6,15,891/- as per the agreement, and accordingly an arrangement was arrived at and the minutes were reduced to writing on 26-10-1985. The defendant had been awarded another contract in connection with pumps. After installation, those pumps also did not function properly, for which the plaintiff had to spend Rs. 70,000/-. Defendant in the meeting held on 26-10-1985 agreed to reimburse the said amount. After adjustment of this sum of Rs. 70,000/-, some amounts were to be paid to the defendant under the second contract. Subsequently, a composite schedule was prepared under which it was finally settled that the defendant is to pay a sum of Rs. 4,73,960/-, out of which Rs. 2,73,960/-was paid. The plaintiff filed the suit for recovery of the balance amount.
3. The defendant in its written statementfiled on 28-9-1989 accepted that as per theagreement arrived at by both the parties, asum of Rs. 4,73,960/- was to be paid by thedefendant as decided in the meeting on 26-10-1985. But it was pleaded that the plaintiff wasobliged to deliver back the equipmentsbelonging to the defendant which wereillegally withheld, resulting in loss to thelatter.
4. In the proposed additional written statement, the defendant wanted to highlight that because of unequal bargaining power between the parties, the defendant was forced to enter into the agreement. In essence, the agreement which was originally accepted to be mutual and voluntary, was characterised to be illicit, on the ground that the defendant was at a disadvantageous position because of unequal bargaining power. Learned Subordinate Judge was of the view that there was no reason as to why the plea sought to be introduced by the additional written statement could not be originally reflected. Leaveto accept additional written statement is notto be granted automatically, and can begranted after sufficient cause is shown. Thereason stated to justify non-indication wasthat certain documents were not available andwere subsequently traced. The same did notappeal to learned Subordinate, Judge. Theplea that the agreement was taken by force,was held to be a state of mind and notreferable to any documents. It was alsonoticed that if in fact the defendant gatheredthat plea from any document, details of thosedocuments were not indicated in the application. With these observations, the applicationwas rejected.
5. Learned counsel for petitioner in support of the application has submitted that inthe worst case, plea can be characterised to beinconsistent plea. It was open to the defendant to take alternative pleas, while filingwritten statement. Merely because at a subsequent stage, the plea was intended to be takenby filing additional written statement, theprayer should not have been rejected. By wayof elaboration, it is submitted that there is nobar in taking an inconsistent plea, and in viewof the fact that the trial has not yet begun,learned Subordinate Judge should haveaccepted the plea; as no prejudice would becaused to the plaintiff. Learned counsel forthe opp. party however, submitted that theplea if allowed to be taken, would completelychange the nature arid character of disputeinvolved. No reason has been indicated as towhy the plea could not be taken while fifingwritten statement, and learned SubordinateJudge in this background, has analysed thefactual aspect in detail and his conclusions areirreversible.
6. For resolution of the controversy, reference to few relevant provisions of the Code is necessary. Order 8, Rule 9 of the Code lays down an important rule of pleading that no pleading subsequent to the written statement by a defendant other than by way of defence to a set off shall be presented except by leave of the Court. The rule requires leave of the Court before any party can make a further pleading after written statement has been filed. Where a defendant intends to file additional written statement, he must file an application showing the circumstances as to why he failed to raise the plea in the original written statement, and the other party must be given opportunity to meet the motion. In considering whether leave to file an additional written statement, should be granted or not, the delay that has taken place in raising the contention raised in the additional written statement and the reason why those contentions were not raised before have to be considered. Though the Rule invests the Court with wide discretion and enables it to accept written statement filed subsequently, samp is not to be accepted where a new case or facts inconsistent with the original written statement are sought to be brought on record. In this context, reference to provisions of Order 6, Rule 7 of the Code is necessary. The said rule stipulates that a new ground of claim or allegation of fact inconsistent with the previous pleading of the party cannot be accepted except by way of amendment. Thus, Order 6, Rule 7 of the Code is subject to the Order 6, Rule 17 of the Code under which the amendments are made. Therefore, provisions of Order 6, Rule 17 of the Code are to be kept in mind while accepting fresh pleadings raising new ground of claim of containing allegations' of fact inconsistent with the previous pleadings of the party. A departure takes place when in any pleadings the party deserts ground' that he had taken in his previous pleading and resorts to another and different ground. The object of Order 6, Rule 7 of the Code is to prevent such a departure.
7. In the case at hand, a bare look at the plea sought to be introduced by the defendant shows that the same is at variance with the plea originally taken, and amounts to a departure and in essence, is an inconsistent plea. Judged in the background of Order 6, Rule'7 of the Code, such an inconsistent plea cannot be permitted to be raised except by way of amendment. Learned counsel for petitioner has accepted that the plea in essence, is an inconsistent plea, but according to him, such a plea could be taken in the written statement originally filed, on an alternative plea. Therefore, applicability of Order 6, Rule 7 of the Code is indirectly acknowledged. Learned Subordinate Judge was right in refusing leave to file additional written statement.
8. It is urged by the learned counsel for the petitioner that the application can be treated to be under Order 6, Rule 17 of the Code, without laying undue stress on the terminology used for the description of the petition, and nomenclature attached to it. Application under Order 6, Rule 17 and Order 6, Rule 9 of the Code are contextually different. Therefore, the plea is not tenable. However, I make it clear that if an application for amendment under Order 6, Rule 17 of the Code is filed by the petitioner, the same shall be considered in accordance with law.
The Civil Revision is disposed of accordingly. No costs. Order accordingly