Judgment:
ORDER
Abhilasha Kumari, J.
Mr. Plnakln B. Raval, learned Counsel'waives service of notice of rule on behalf of respondent No. 1. Mr. J.B. Pardiwala, learned Counsel, waives service on behalf of respondents Nos. 2 and 3. Though served, none appears on behalf of respondents Nos. 4 and 5.
1. By way of this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 17.07.2008, passed by the trial Court in application at Exhibit-293, in Special Civil Suit No. 26 of 1997 and Special Civil Suit No. 31 of 1998, whereby the said application of the petitioner, for filing a fresh written statement, has been rejected.
2. The facts of the present case are some what chequered and are being briefly reproduced hereunder.
2.1 The petitioner is the original defendant No. 2 in Special Civil Suit No. 31 of 1998. Respondent No. 1-Trust is the plaintiff therein. The said Suit has been filed with a prayer for declaration and permanent injunction and for a decree of specific performance of contract entered into by the farther of the petitioner and respondent No. 2, and respondent NO. 1, whereby it was agreed to sell land bearing Survey Nos. 204/1,205/2 to respondent No. 1, by Agreement to Sell dated 14.01.1973, Respondent No. 2 is the brother of the, petitioner and respondent No. 3 is the wife of respondent No. 2.
2.2 It is the case of the petitioner that as he is residing at Mumbai, he has conferred a Power of Attorney upon respondent No. 2, in respect of certain properties, mentioned therein. Respondent No. 2, on the strength of the said Power of Attorney, sold land bearing Revenue Survey Nos. 204/1 and 205/2 to respondent No. 3, herein, who is his wife. However, respondent No. 2 has made certain interpolations in the the said Power of Attorney and added certain Revenue Survey numbers as such Revenue Survey Nos. 204/ 1 and 205/2, which were never mentioned in the original Power of Attorney. On the basis of the said Power of Attorney, the respondent No. 2 filed ajoint written-statement on behalf of himself, the petitioner and respondent No. 3, in Special Civil Suit 31 of 1998, taking the stand that the property comprising the said survey numbers had been sold to respondent No. 3, by executing a registered Sale Deed and, therefore, cannot be claimed by respondent No. 1-original plaintiff. The petitioner was not aware about the interpolations made in the said Power of Attorney and according to him, he was not aware of the transfer of the said land by respondent No. 2, to respondent No. 3. He came to know regarding the same in the year 2003. Respondent No. 3 also filed Special Civil Suit No. 26 of 1997, for declaration and permanent injunction. The petitioner was not a party to the said Suit and was impleaded after filing an application to be joined as party. Special Civil Suit No. 26 of 1997, and Special Civil Suit No. 31 of 1998, instituted by respondent No. 3 and respondent No. 1 respectively, came to be consolidated, somewhere in the year 2002 and it was ordered that evidence be recorded in common. Thereafter, the petitioner filed Special Civil Suit No. 33 of 2003, subsequently renumbered as Regular Civil Suit No. 153 of 2005, praying for the cancellation of the Sale Deed executed by respondent No. 2, in favour of respondent No. 3. This Suit came to be decreed on 08.09.2006, against which an appeal has been preferred by respondent Nos. 2 and 3, which is pending.
2.3 In the above background, the petitioner filed an application at Exhibit-293, in Special Civil Suit Nos.26 of 1997 and 31 of 1998 with a prayer to cancel the written-statement, earlier filed by respondent No. 2 on his behalf as Power of Attorney, and for permission to file a fresh written-statement. This application has been rejected by passing the impugned order, hence the petition.
3. Mr. Zubin F. Bhadra, learned Counsel for the petitioner has submitted as follows:
(i) The petitioner and respondent No. 2 are real brothers and respondent No. 3 is the wife of respondent No. 2. The father of petitioner and respondent No. 2 had entered into an agreement to sell the Suit Property to the respondent No. 1-Trust. As the petitioner is residing in Mumbai, he had constituted respondent No. 2, his Power of Attorney, in respect of certain properties. However, the petitioner had never conferred any authority upon respondent No. 2 as Power of Attorney, with regard to the Suit Property. Respondent No. 2 has made interpolations in the deed of Power of Attorney and has added therein certain revenue survey numbers, in respect of which the petitioner had never conferred any authority upon the respondent No. 2, including the Suit Property.
(ii) Respondent No. 2, by committing fraud upon the petitioner by making interpolations in the Power of Attorney, has sold the Suit property to his wife, respondent No. 3.
(iii) The written submission filed by respondent No. 2, as Power of Attorney of the petitioner, in Special Civil Suit No. 31 of 1998, does not portray the correct factual position, as summons were served at Navsari, whereas the petitioner resides at Mumbai, and as the petitioner was not aware of the sale of the Suit land to respondent No. 3 by the respondent No. 2, he was constrained to file an application at Exhibit-293, for permission to file a separate written submission, after coming to know about the interpolations made in the Power of Attorney.
(iv) The petitioner was pursuing several litigations, at the same time and had to get himself impleaded in Special Civil Suit No. 26 of 1997. He was further engaged in filing Special Civil Suit No. 33 of 2003 (subsequently renumbered as Regular Civil Suit No. 153 of 2005) for cancellation of the said Sale Deed, and at the same time, he had to defend Special Civil Suit No. 31 of 1998, in which an incorrect written statement had been filed by respondent No. 2 therefore, though there is delay in making the application, it cannot be said to be fatal, as Special Civil Suit No. 31 of 1998, had, at one point of time been dismissed on an application filed by the petitioner. In appeal, the matter was remanded to the District Court, Navsari, due to enhancement of the pecuniary jurisdiction of the Court. The District Court, allowed the appeal and remanded the matter to the trial Court, where it is pending. It cannot, therefore, be said that there is delay in filing the application for permission to file a fresh written-statement, as has been held in the impugned order.
(v) That, the impugned order of the trial Court is erroneous, perverse and contrary to the factual and legal position as manifest error has been committed, in not permitting the petitioner to file a separate written statement, in the circumstances mentioned above.
(vi) That the Court below has not considered the aspect that the respondent No. 2 had no authority to deal with the Suit land bearing Survey Nos. 204/1, 205/2, as the petitioner had not conferred any authority in the Deed of Power of Attorney, upon the respondent No. 2 in respect of the said land and by making alterations, interpolations and additions in the Power of Attorney, respondent No. 2 has sold the Suit land to his own wife, respondent No. 3. In this background, the Court below ought to have permitted the petitioner to file a separate written statement, as there is no other remedy available to the petitioner, in order to bring the factual position on the record.
(vii) The Court below has erred in observing that the written statement can be filed only if there is an amendment in the plaint, and in the absence of such amendment, the application of the petitioner cannot be granted.
(viii) That, it is always open to the Court to take into consideration subsequent events and mould the relief accordingly, and as subsequent events have a bearing upon the case of the petitioner, the application of the petitioner has been wrongly rejected.
3.1 In support of the above submissions, learned Counsel for the petitioner has placed reliance on the following decisions,
1. Ramesh Kumar v. Kesho Ram : AIR 1992 SC 700,
2. Shyam Sunder and Ors. v. Ram Kumar and Anr. : (2001) 8 SCC 24 : AIR 2001 SC 2472
On the strength of the above submissions it is prayed that the petition be allowed and the impugned order be set aside.
4. Mr. Pinakin Raval, learned Counsel for respondent No. 1-Trust, has supported the stand of the petitioner. Referring to the affidavit-in-reply filed on behalf of respondent No. 1, Mr. Raval, has submitted that said respondent has no objection if the petitioner is permitted to file a separate written statement, even at a belated stage, considering that respondent No. 2 has misused the Power of Attorney by making interpolations and has filed an incorrect written statement on behalf of the petitioner.
5. Mr. J.B. Pardiwala, learned Counsel for respondent Nos. 2 and 3 has strongly opposed the prayers made in the petition, by making the following submissions:
(1) The question whether fraud has been committed by respondent No. 2, who was the Power of Attorney holder of the petitioner, by filing a joint written statement, is a matter to be gone into, and decided by the Civil Court. The fact remains that the written statement filed by respondent No. 2, Power of Attorney holder of the petitioner, has also been filed on behalf of the petitioner. The petitioner, being one of the defendants (defendant No. 2) in Special Civil Suit No. 31 of 1998, has taken a specific stand in the written statement, which is now sought to be changed, on the pretext that the respondent No. 2, has allegedly duped him and misused the Power of Attorney.
(2) The prayer made by the petitioner in the application at Exhibit-293, is not one for amendment of the written statement but is for setting aside the written statement already filed and for permission to file a fresh one. Such a prayer is impermissible in law and, has been Tightly rejected by the trial Court.
(3) The provisions of Order 8 Rule 1, provide for filing of a written statement within 30 days, from the date of service of summons, and the outside limit for filing a written statement, as per the proviso, is not later than 90 days. Moreover, the proviso to Order 6 Rule 27 which deals with amendment of pleadings and permits either of the parties to alter or amend his pleadings contains an embargo that no application shall be allowed after the commencement of the trial. In the present case, the trial has already commenced and the application has been filed after an inordinate delay.
(4) The provisions of Order 6 Rule 7 debars any pleadings to be filed, except, by way of amendment raising new grounds ,of claim, containing any allegation of fact inconsistent with the previous pleadings of the party pleading the same. Apart from the above, the provisions of law makes it clear that there is no-provision enabling the petitioner to file a, fresh written statement by substituting the previous one. While passing the impugned order the Court below has taken into consideration the entire legal and factual position and has correctly rejected the application of the petitioner for substituting the written statement.
(5) The petitioner can always enter into the witness box and lead evidence in support of his claims, and it cannot be said that rejection of application for substituting the earlier written statement and filing a fresh one statement would cause him any prejudice.
5.1 In support of the above submissions, Mr. Pardiwala, has relied upon,
Kallampudi Narayanappa v. Kaligotla Suryanarayana and Ors. AIR 1950 Mad 46.
6. I have heard learned Counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned order and other documents on record. The facts of the case appear to have a chequered history. Insofar as this Court is concerned, the question for determination is a short, but important one, that is, whether, after the filing of the written statement the defendant can be permitted to substitute the same by filing a fresh one. The prayer made in the application filed before the trial Court is to the effect that the written statement already filed, be cancelled and set to naught and permission may be granted to substitute the same, by filing a fresh written statement. The reasons advanced in support of the above prayer are that the written statement has been filed by respondent No. 2 as Power of Attorney, though the petitioner had never given him authority to deal with the suit land. The respondent No. 2 has made interpolations and additions in the said Power of Attorney and sold the suit land to respondent No. 3, therefore the petitioner should be permitted to file a fresh written statement, in lieu of the earlier one. The Court below has observed that there is an inordinate delay in filing the application and as there is no amendment in the plaint, the application of the petitioner for filing a fresh written, statement cannot be allowed.
6.1 Whatever be the grounds for seeking relief from a Court of law, ^he said relief can only be considered, or granted, if it is permissible in law. The nature of proceedings have to be kept in mind, and it cannot be lost sight of, that the application for substituting the written statement has been preferred by the petitioner in a Suit, which has to be decided in accordance with the provisions of the Code of Civil Procedure. The Court below has passed a reasoned order after considering the factual and legal issues involved and has not committed any manifest error of law or jurisdiction in doing so. The arguments advanced by Mr. J.B. Pardiwala, learned Counsel for respondents Nos. 2 and 3 have some force, and are worth consideration.
6.2 At this stage, it would be fruitful to examine the relevant provisions of law. Order 6 Rule 1 of the Code reads as under;
1. Pleading: 'Pleading' shall mean plaint or written statement.
6.3 Order 6 Rule 7 of the Code reads as below;
7. Departure: No pleading 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.
6.4 Order 6 Rule 17, further, provides for amendment of pleadings and is relevant in the present context. It reads as follows;
17. Amendment of Pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
6.5 Order 8 Rule 1 of the Code deals with written statement, set-off and counter claim, which reads as under,
[WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM]
(1. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not later than ninety days from the date of service of summons.
6.6 From the above quoted provisions of law, it is evident that there is no provision in the Code for cancelling or setting aside a written statement already filed, and substituting it with a fresh one. Amendment in pleadings is permitted by Rule 17 of Order 6, on such terms as may be just, and such an amendment should be necessary for the purpose of determining the real question in controversy between the parties. However, even such an amendment is not permitted after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the parties 'could not have raised the matter before the commencement of the trial'.
6.7 In the present case, it is not an amendment of the written statement that is being sought by the petitioner, but in effect, the substitution thereof by filing a fresh one by cancelling or setting aside the earlier written statement. Admittedly, such a situation is not contemplated by, and does not fall within, the purview of any of the provisions of law quoted hereinabove. The learned Counsel for the petitioner has not brought to the notice of the Court any other provision that could be used to his advantage.
6.8 The judgment of the Madras High Court in 'Kallampudi Narayanappa' (supra) squarely covers the present case. In that case, the defendant No. 2 had sought permission to substitute another written statement for the one already filed by him, as it was his case that the first written statement was obtained under fraud and misrepresentation. The application to this effect was allowed by the learned District Munsif and the written statement was filed and substituted in place of the earlier written statement. The matter reached the High Court in Revision, and it was held that;
The written statement that had already been filed was under Order 8, Rule 1, of Civil P.C. It cannot be said that Order 8, Rule 1, would apply for the substitution of a fresh written statement in the place of the one filed already under Order 8, Rule 1, Civil P.C. It is unnecessary to consider whether the written statement could have been filed under Order 6, Rule 17, of Civil P.C., as it relates to the amendment of pleadings by which the pleadings may be altered or amended under the circumstances mentioned in the rule. There is, however, no provision in the Civil Procedure Code to enable the Court to permit the substitution in toto of one written statement for another already filed. I am of the opinion that the learned District Munsif had no jurisdiction to pass an order directing the substitution of the new written statement filed along with the interlocutory application in the place of the one filed already under Order 8, Rule 1, Civil P.C. The original statement filed in the first instance on 7th July, 1948 will remain on the file. It is always open to defendant 2 at the time of the trial of the suit to state the circumstances which he now alleges, under which the first written statement which he filed in person was presented. The revision petition is allowed with costs.
6.9 The case of the petitioner is that the earlier written statement has been filed by the respondent No. 2, on the strength of the Power of Attorney, which has been interpolated. The principles of law enunciated in the above quoted judgment would be relevant in the present case. The petitioner has not sought an amendment in the written statement, rather he wants to set at naught the earlier written statement by filing a fresh one, therefore the impugned order, having taken into consideration the relevant legal and factual issues, does not warrant interference.
7. For the reasons mentioned herein-above, the petition fails, and is dismissed. Rule is discharged.