PARBATI DEI Vs. ALUPATI DUKHISHYAM PATRA

JUDGEMENT

(1.) PLAINTIFF (opposite party No. 1) filed a title suit No. 75 of 1963 in the Court of the Munsif. Aska for recovery of arrears of "rent and possession of the suit house from defendant No 1 (opposite party No. 2) on the allegation that the house was leased out to him on 10-3-1961. Plaintiff's title to the suit house is based on a registered deed of sale dated 10-3-61 by the defendant No. 2 (opposite party No. 3) in his favour Defendant No. 2 is the father of the fourth defendant (petitioner)and husband of the third defendant The first defendant denied relationship of landlord and tenant and pleaded that nominally he executed a rent deed on the pressing request of the plaintiff and that he was never inducted as a tenant. The petitioner and her mother engaged one Advocate and filed a joint written statement drafted on the instructions of the mother. The petitioner is a young lady twenty years old and knew nothing about the case. In the joint written statement filed on 4th of May 1964 it was pleaded that the suit house belonged to the third defendant; that the site was purchased and the house was constructed with the funds of the third defendant though the title deed stood in the name of the second defendant The lease set up by the plaintiff was challenged as untrue. The petitioner and her mother claimed to be in possession of the suit house. Thus the petitioner claims no title in herself in the original written statement. Her case is that after the joint written statement was filed she learnt from her neighbours that the suit house had been conveyed to her by her father. She made necessary enquiries and applied for a copy of the registered document. The recitals read out to her revealed that the suit house was gifted to the petitioner by her father by a registered deed on 2-6-1955. On further search of her belongings she also traced out the original deed of gift. On 14-9-64, the petitioner filed both the original and the certified copy of the deed of gift, engaged another advocate and asked for permission of the Court to file a separate written statement setting up her title to the suit house on the strength of the deed of gift executed by her father A fresh written statement was filed on her behalf and an amendment of the written statement was not sought for as initially a joint written statement had been filed and her case in the fresh written statement was opposed to the case of her mother in the original written statement. In substance the prayer was for amendment of her own written statement. The learned Munsif did not grant permission and rejected the written statement by his order dated 19-9-1964 against which the civil revision has been filed

(2.) TRIAL of the suit has not yet commenced. It is not disputed that the defence in the fresh written statement is contrary to the earlier one in one material aspect. There is no difference in the averments made in the two written statements that plaintiff has no title and is not entitled to recovery of possession or arrears of rent. The change in the defence lies in the fact that initially plaintiff's stand was that the title to the property vested in her mother and not her father By the subsequent written statement, the petitioner accepts the title of the father and claims her independent title even against the mother on the basis of the registered deed of gift. Another important feature to be noticed is that the conduct of the petitioner does not appear to be mala fide. Her subsequent claim is based on a registered deed of gift of the year 1955 which could not be manufactured subsequent to the filing of the original written statement. The trial Court rightly does not discard the petition' version that on enquin she same to kno of the registered document as being untrue. Thus the following features stand in favour of the petitioner in asking for permission of the Court to file a fresh written statement.

(3.) RELEVANT provisions of C. P. C. may be examined. "pleading" shall mean plaint or written statement, (Order VI. Rule 1 ). 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 (Order VI, rule 7 ). No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall he presented except by the leave of the court and upon such terms as the Court thinks lit. 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. (Ordinance VIII, Rule 9 ). It is only at the stage of such subsequent pleading enacted in Order 8, Rule 9 that the provisions enacted in Order VI. Rule 7 apply for the first time against what is called "a departure in the pleading". A departure takes place when in any pleading, the party deserts the ground that he took up in his previous pleading and resorts to another on different grounds. This is exactly what has happened in this case and the question is whether Order VI, Rule 7 would stand in the way of the petitioner in not accepting the fresh written statement. It would appear from the language of Order VI, Rule 7 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. Order VI, Rule 7 is thus subject to Order vi, Rule 17 under which amendments are made. It lays down that the Court may at any stage of the proceeding 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 determining the real questions in controversy between the parties The Court must therefore, keep provisions of Order VI, Rule 17 in mind while accepting fresh pleading raising new ground of claim or containing allegations of tact inconsistent with the previous pleading of the party. It is thus necessary to examine the true scope of this rule. In Pirgonda Hongonda patil v. Kalgonda Shidgonda Patil, (S) AIR 1957 SC 363 their Lordships observed that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. The dictum of Lord Justice Bowen in Cropper v Smith, (1884) 26 Ch. 0 700 at pp. 710, 711 on this aspect of the matter cannot be bettered. The same may be quoted: