ASHOK KUMAR Vs. CHANDRA BHAWANANI

JUDGEMENT

(1.) Heard Mr. Ajit Narayan Sinha, learned counsel for the petitioners and Mr. S.D. Sanjay, learned counsel for the respondents. The present application under Article 227 of the Constitution of India is directed against the order dated 27.2.2013 passed in Title Suit No. 439 of 2008 by the Subordinate Judge-III, Patna by which the petition filed by the petitioners for permission to file additional written statement, cross-examine the witnesses of the plaintiffs on new facts and also to adduce evidence on the basis of additional written statement has been rejected.

(2.) The respondents were plaintiffs in Title Suit No. 439 of 2008 which was for declaration of title in which the petitioners were the defendants. Upon the suit being admitted and summons being sent, the petitioners appeared and also filed their written statement. Thereafter, witnesses were examined on behalf of both the parties and arguments were in progress and the case was then to be posted for judgment when the petitioners-defendants filed an application to the effect that the copy of the plaint received by them alongwith the summons was a different version of the actual plaint of the suit. Thus, they prayed that they may be given an opportunity for filing additional written statement, cross-examine the witnesses of the plaintiffs on new facts and also adduce evidence on the facts and basis of the additional written statement. The Court by the impugned order had dismissed such petition.

(3.) Learned counsel for the petitioners submits that though they had filed their written statement and also participated in the trial by cross-examining the plaintiffs witnesses and also getting their witnesses examined but this fact of having received a copy of the plaint which was different from the real plaint of the suit, could not earlier be detected by them and thus under bona fide impression the application was filed. Learned counsel submits that in view of the same, since in the copy received by the petitioners there were only 25 paragraphs whereas the plaint filed in the Court had 30 paragraphs, i.e., 5 paragraphs were missing from the plaint received by them, they ought to be given a chance to respond to the averments made in those paragraphs by way of filing additional written statement and also cross-examine the witnesses of the plaintiffs with regard to the new facts and also adduce evidence on the basis of the additional written statement. Learned counsel submits that the petitioners would be prejudiced and would be put to irreparable loss if the prayer is not allowed. Learned counsel has argued that Order V Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') requires that every summon shall be accompanied by a copy of the plaint. In the present case, when a copy of the plaint was sent with the summon, the very next stage of the proceedings including validity of service gets vitiated for the reason that the document which was sent alongwith summons was not the plaint as contemplated under the Code. Learned counsel submits that prejudice would be caused to him in the sense that during arguments when the extra paragraphs of the original plaint would be required to be answered by him, all those facts narrated in those paragraphs would be deemed to have been accepted by the petitioners as they had not replied to the same for the simple reason that those paragraphs were never present in the copy of the plaint received and served on them. Learned counsel submits that by way of example, if paragraph No. 22 of the copy of the plaint which was received by him is compared with paragraph No. 27 of the original plaint which relates to the cause of action having arisen for the suit, as per the copy received by the petitioners the last date mentioned is 6.10.2008 whereas in the plaint filed before the Court it is 10.11.2008. Thus, it is submitted that there being difference, the petitioners are in a disadvantageous position and it has not been caused due to any laches on their part but because of the conduct of the respondents from which the petitioners be protected. Learned counsel submits that the stage at which such objection was raised cannot be said to be belated for the reason that it was beyond their expectation that such a glaring error would be committed by the respondents which cannot be brushed aside as being a minor discrepancy and the proceedings which are governed by the Code, any provision made therein should not be given a goby.