SUJIR KESHAV NAYAK Vs. SUJIR GANESH NAYAK

JUDGEMENT

(1.) REVISION arises from the finding on issues 19 and 20 in o. S. 137/1983 before Sub Judge, Kollam. That is a suit for a declaration that m/s Sujit Ganesh Nayak and Co. , a partnership firm of which plaintiff and defendant were the partners, stood dissolved or is deemed to have been dissolved with effect from 21st December 1982 or from 14th March 1981 as claimed by the defendant and for rendition of accounts. A permanent injunction was also sought seeking to restrain defendant from appropriating or disposing of plaint A schedule immovable properties and the movables in the B schedule as well as for a permanent injunction to restrain defendant from interlaying with the rights of the plaintiff from entering the head office of the firm situated in item No. l of the plaint A schedule and inspecting books of accounts and movables kept therein. Plaintiff claimed 7/16 shares in the assets of the firm. For the purpose of court fee and jurisdiction, the share of the plaintiff was valued at Rs. 10,050 under S. 36 of the Kerala Court Fees and Suits Valuation Act and an amount of Rs. 985 was paid as court fee. The relief of injunction was valued at Rs. 150 under S. 27 (c) and court fee of Rs. 15 was paid. Defendant filed written statement resisting the claim of plaintiff. In paragraph 31 of the replication filed by the plaintiff claim was made for an amount of Rs. 28 lakhs. An additional written statement was filed by the defendant contending that the suit is not properly valued and the court fee paid is insufficient.

(2.) ON the basis of the additional pleadings, issues 19 and 20 were raised as to whether the suit has been properly valued and whether the court fee paid is proper. Both sides were heard on these issues and the court below by order dated 13th September 1990 found that the plaintiff has not properly valued the suit and that proper court fee has not been paid. Holding that plaintiff is bound to value the suit as per the details given by him in paragraph 31 of his replication, the court directed plaintiff to take steps within one week to correct the valuation accordingly and to pay deficit court fee on making such correction. That finding is under challenge in this revision filed by plaintiff.

(3.) THE object of a pleading is to narrow the parties to definite issues so that the parties can concentrate their attention on the matter in controversy to be settled by a decision on those issues. THE sole object of the pleading is that each side may be fully aware of the questions that are to be raised and argued by the other side so that they have an opportunity to meet that case and bring forward such evidence as is necessary. A suit is a civil proceeding and every suit is instituted by presentation of a plaint. Order 8 rule 1 of C. P. C. enables the defendant to present a written statement at or before the first hearing of the suit or within such time as the court may permit. Before the amendment of this rule in 1976, the filing of the written statement by the defendant was discretionary. It was obligatory only when the court required the defendant to file a written statement within a specified time. THE present rule has made it obligatory for the defendant to file a written statement in all cases and such written statement has to be filed on or before the first hearing or within such time as permitted by the court. Ordinarily the pleadings and with the filing of the written statement by the defendant. THEreafter neither plaintiff nor defendant is entitled to get the pleadings amended except in accordance with the provisions in the Code. THE relevant provisions are rule 17 of Order 6 and rule 9 of Order 8 C. P. C. Normally no reply is necessary to a written statement for the purpose of denying the allegations in the written statement. But a reply may be filed if it is necessary for the plaintiff to set up some affirmative case in answer to the facts alleged by the defendant. It is to enable the parties to file a subsequent pleading in such and similar circumstances that rule 9 has been incorporated in Order 8 of the Code. That rule reads: "no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. " THE rule requires the leave of the court before any party can present a further pleading after the filing of the written statement by the defendant except by way of defence to a set-off or counter-claim. Plain tiff may, with the leave of the court, file a written statement or the court may require him to file a statement. Defendant also can seek the leave of court and file a subsequent pleading on sanction of leave. In either case the additional or subsequent pleading forms part of the pleading of the parties. THE rule contemplates a subsequent pleading in the form of a written statement and is referred to as a written ! statement and is referred to as a written statement even if it is filed by the plaintiff. THE words "no pleading subsequent to the written statement of a defendant" imply that normally the pleading and by the filing of the written statement. That alone is the pleading which the court can look into. But power is conferred on the court to receive subsequent pleading meaning thereby plaint or written statement at the request of the parties or to direct the parties to file a written statement or an additional written statement. What can be required of plaintiff by the court is only a written statement or additional written statement. It necessarily follows that the subsequent pleading of the plaintiff should also be in the form of a written statement. Parties are given right to get the pleadings altered or amended at any stage of the proceedings under Rule 17 of Order 6. That rule stipulates that the court may, at any stage of the proceedings, allow either party to alter or amend the pleadings and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. When once such a right has been conferred on the parties under Rule 17 of Order 6, they can avail of the provision and get the pleadings altered or amended. But what is contemplated in Rule 9 of Order S. is not alteration or amendment of the pleading, but only filing of a subsequent pleading.