HATIM ATTARI Vs. SYLVIE GOUDCHAU

JUDGEMENT

(1.) .This revision petition arises from an order of the Chief Judge City Civil Court 'Secunderabad given on 24th September, 1964. The plaintiff filed an application to permit her to file a rejoinder. The defendant resisted this petition. The lower Court, after hearing the parties, allowed the petition by the order under revision. The principal contention of Sri K. A. Muktadar, the learned Counsel for the petitioner, is that since the rejoinder is inconsistent with the facts alleged in the plaint the lower Court was wrong in permitting such a rejoinder to be filed as it would be violating Order 6, rule 7 Civil Procedure Code.

(2.) In order to appreciate the implications of this argument, it is necessary to mention a few facts. The plaintiff in paragraph 3 of her plaint stated:

(3.) He therefore permitted the rejoinder to go on record by allowing the petition filed by the plaintiff. It is this order that is now questioned in this revision petition. Originally, this petition came before our learned brother, Venkatesam, J.for hearing. As argument was advanced before our learned brother that Kuppa Viswapathi v. Kuppa Venkatakrhhna Sastry1, required re-consideration the learned Judge thought that the matter should be placed before a Bench and that is how the case has come before us. The principal contention of Mr. K. A. Muktadar, the learned Counsel for the petitioner, is that as the rejoinder which has been permitted to go on record, is inconsistent with the allegation appearing in the plaint. Permission should not have been granted as it violates the provision of Order 6, rule 7, Civil Procedure Code. It is no doubt true that Order 6, rule 7, Civil Procedure Code which relates to the departure, enjoins that no pleading shall, except by way of amendment, contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. But it cannot be doubted that under Order 8, rule 9, Civil Procedure Code, it is in the discretion of the Court to permit or not a subsequent pleading to be filed. Although the normal practice is that no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented after obtaining the necessary leave of the Court subsequent pleadings in certain circumstances can be filed. It is left to the discretion of the Court to grant or refuse to grant such a relief and put the party upon such terms as it thinks fit. It is, however, open to the Court itself to require a written statement or an additional written statement from any of the parties and fix a time for presenting the same. We are not concerned here with the latter portion of the said rule. The first limb of that section vests a discretion in the Court to permit subsequent pleadings to go on record. The question, however, is whether the trial Court exercising the discretion under rule 9 of Order 8, Civil Procedure Code can permit a rejoinder which is inconsistent with the plaint, which contains an allegation of fact, to go on record. We do not think the trial Court can do that. Rule 7 of Order 6 is peremptory and leaves no one in doubt that no subsequent pleading which contains any allegation of fact inconsistent with the earlier pleading can be allowed to go on record. That is what is held in Kuppa Viswapathi v. Kuppa Venkatakrishna Sastry, (1962) 2 An. W.R. 119. We are there fore satisfied that where a rejoinder filed by a plaintiff sets up a plea inconsistent with those in the plaint, Order 6, rule 7, Civil Procedure Code, operates as a complete bar But the question is whether in the present case the rejoinder is a departure from the plaint. After going through carefully the allegations in reference to the facts made in the rejoinder, we cannot say that it is a departure from the allegations of fact made in the plaint. In fact the rejoinder merely explains the inadvertent mistake which the plaintiff committed in making allegations in regard to the facts in the plaint. Such an explanatory statement cannot be said to be inconsistent within the meaning of Order 6, rule 7, Civil Procedure Code. In our opinion it does not cause prejudice to the plaintiff as the suit is yet to be tried. We are fortified in our view by a decision in Lall Mahomed and another v. Dhoolee Ram Doss, (1874) 22 Sutherland Weekly Reporter 377 The lower Court, therefore, in our view was right in permitting the rejoinder to go on record as it was not inconsistent with the earlier pleading and does not, in our view, offend the mandatory rule 7, of Order 6, Civil Procedure Code.