RUKHSANA SULTANA Vs. MOHINDER KAUR

JUDGEMENT

(1.) The plaint in this suit was permitted to be amended in certain respects Vide order dt. 12.4.83 and an amended plaint was directed to be filed accordingly. The defendants were also called upon to file written statements to the amended plaint within a certain period, and they have done so. However, the plaintiff has moved this petition u/O. 6 R. 7 read with Section 151, Civil Procedure Code (the Code), complaining that in the garb of replying to the amended portion of the plaint the defendants have absolutely changed their original w/s without seeking permission of the Court for amendment. It is contended that the defendants could have amended their w/s only to the extent it was necessary for them to reply to the amended plaint as allowed by the Court and nothing further. Thus, the grievance of the plaintiff is that new grounds of claim and allegations of fact inconsistent with the previous pleadings of the defendants cannot be permitted unless, of course, they seek amendment of their previous w/Ss under 0. 9 R. 17 of the Code.

(2.) This application is hotly contested by counsel for the defendants who has urged that on the plaint being amended a right accrued to the defendants to file fresh w/Ss and that right was not confined to the defences which may be raised to the amended portion of the plaint, especially when no such limitation on the right to file a fresh w/s was imposed at the time of requiring them to file w/s consequent upon the amendment of the plaint. It is, of course, conceded that certain allegation of fact as embodied in the subsequent w/s are inconsistent with those contained in the previous w/s. For instance, defendant 2 had, in the previous w/s, admitted that the plaintiff was wife of Shri Shivinder Singh, defendent 3, but this fact has been categorically denied in the subsequent w/s filed by them. The short question that arises for decision, therefore, is: 'Whether the defendants are within their right to raise new pleas or make allegations of fact, in the w/s filed in answer to the amended plaint, which are inconsistent with those raised in the earlier w/s without obtaining permission of the Court for the purpose ?"

(3.) There seems to be divergence of judicial opinion on this point.' High Courts of Himachal Pradesh, Gujarat and Patna have taken the view that if a plaint is allowed to be amended after the filing of the w/s by the defendant, the additional w/s that may be filed by the defendant after the amendment of the plaint should be confined and limited to the amended portion of the plaint only, and the defendent cannot, in the garb of replying to the amended portion of the plaint, be allowed to amend his own original w/s without seeking permission of the Court for amending it as required u/O. 6 R. 17 of the Code. Reference in this context may be made to Dittu Ram V. Amar Chand, AIR 1961 HP 46, Sawan Singh V. Radha Kishan, AIR 1980 HP 8 (DB), Thakkar Babulal Dayashanker V. Metha Kalwam, AIR 1978 Gujarat 94, and Ramyadik Singh V. Sahjada Singh, 18(1970) BLJR 987. On the other hand the Punjab High Court has held that :