BRIJ LAL Vs. COOPERATIVE SOCIETY GRAM

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment dated April 7, 1981, passed by the Additional District Judge, Sri Ganganagar, by which the learned Additional District Judge allowed the appeal filed by the Cooperative Society, village Sahuwala Tehsil and District Sri Ganganagar; set -aside the decree and judgment dated July 16,1980, passed by the learned Munsif, Sri Ganganagar, in Civil Suit No. 68 of 1979 (Brij Lal v. Sahkari Samiti, Sahuwala) and remanded the case for trial to the learned Munsif, Sri Ganganagar.

(2.) PLAINTIFF Brij Lal filed a suit for mandatory injunction and cancellation of the Patta with respect to Plots No. 125 and 126, measuring 100' x 44' granted in favour of the Cooperative Society, in the Court of the Munsif, Sri Ganganagar. The cancellation of the Patta was claimed as the land in question [marked A, B, C, and D in the site plan) was reserved for the water -pond and Gawad and this land bearing Patta No. 125 and 126 is not and Abadi land and is being used by the villagers and their catties for going to that water -pond, and the Panchayat granted the Patta in favour of the Cooperative Society without following the procedure provided under Rules 261 to 266 of the Rajasthan Panchayat Rules. The trial Court, vide its order dated April 9, 1979, ordered for the registration of the suit and for issuance of the summons for framing the issues by registered post as well as by ordinary process. The Office was, also, directed to place a note on the summons that the defendants should file the written statement on that very day. The case was fixed for service on the defendants on May 30, 1979. On May 30, 1979, Shri Som Dutt, Advocate, filed Vakalatnama on behalf of Mohta Singh the Secretary of the Society and, also, filed written statement. One Vakalatnama was, also, filed by Shri Ami Lal, Advocate, on behalf of Daulat Ram the Pradhan of the Society. Nobody appeared on behalf of the defendant No. 2 Gram Panchayat, Sahuwala and, therefore; the exparte proceedings were taken against the Gram Panchayat, Sahuwala and the case was fixed for framing the issues on August 20, 1979. Issues could not be framed on August 20, 1979, and the matter was adjourned to February 11, 1980, for framing the issues. In the meanwhile, on December 27, 1979, the counsel for the plaintiff filed an application under Order 26 Rule 9 C.P.C. for the appointment of the Commissioner for inspecting the site. The trial Court appointed Shri Ghan Shyam Das, Advocate, as the Commissioner to investigate into the matter and to submit his report, who, after investigation, submitted his report. On February 11,1980, Shri Ami Lal, representing the Society, filed written statement on behalf of the Administrator. An application was, also, moved, in which it was averred that the Executive of the Society was dissolved by the Deputy Registrar, Cooperative Societies, on January 1, 1980, and an Administrator has been appointed who has been authorised to file the written statement. The plaintiff objected to the taking on record the written statement filed on behalf of the Administrator and the case was adjourned, for deciding the objection, to February 26, 1980. On February 26, 1980, the arguments were heard and the case was adjourned for pronouncing the order on March 4, 1980. On March 4,1980, the trial Court, upheld the objection raised by the learned Counsel for the plaintiff that the taking of the written statement on record can be considered only if application under Order 8 Rule 9 C.P.C. is made and without any such application, the additional written statement cannot be taken on record. The Court, therefore, directed Shri Ami Lal the counsel for the defendant No. 1 to file an application under Order 8 Rule 9 C.P.C. within the period of three days and only after such application is moved, the question: whether the additional written statement can be taken on record -will be considered and the case was adjourned to March 7, 1980. On March 7, 1980, an application on behalf of the society under Order 8 Rule 9 C.P.C. was moved. This application under Order 8 Rule 9 C.P.C. was contested by the plaintiff and the learned trial Court, by its order dated March 15, 1980, dismissed the application under Order 8 Rule 9 C.P.C, filed by the defendant No. 1. After the rejection of the application under Order 8 Rule 9 C.P.C, a Vakalatnama was filed by Shri Rehka Ram, Advocate, on behalf of the Administrator, who sought time, to - which the learned Counsel for the plaintiff had no objection and the case was adjourned for framing the issues on April 30, 1980. On April 30, 1980, an application under Order 9 Rule 6 read with Order 3 Rules 1 and 2 C.P.C. was moved on behalf of the plaintiff for proceeding ex -parte against the defendant No. 1 because Shri Het Ram Administrator was not competent to represent the society and, therefore, the person, appointed by Het Ram, cannot be permitted to represent the defendant No. 1, i.e., the Society. A reply to this application was filed on behalf of the Society and the application was contested. The learned trial Court, by its order dated May 28, 1980, allowed the application of the plaintiff and directed the suit to proceed ex -parte against the defendant No. 1, also. The Court, therefore, did not frame any issue and without framing the issues, recorded the evidence produced by the plaintiff. On July 16, 1980, an application under order 6 Rule 17 read with Section 151 C.P.C. was moved by the plaintiff for seeking amendment in the relief clause and the learned Munsif, by its order dated July 16,1980, allowed the application under Order 6 Rule 17 read with Section 151 C.P.C. and decreed the suit vide its decree and judgment dated July 16, 1980. Dissatisfied with the decree and judgment dated July 16,1980, passed by the learned Munsif, Sri Ganganagar, the defendant No. 1 preferred an appeal before the learned District Judge, Sri Ganganagar, which was transferred to the Court of the learned Additional District Judge, Sri Ganganagar, who, by his decree and judgment dated April 7, 1981, allowed the appeal filed by the defendant No. 1; set -aside the decree and judgment passed by the learned Munsif, Sri Ganganagar, and remanded the case to him and directed the learned Munsif to take on record the written statement dated February 11,1980, filed on behalf of the Society and to allow the learned Counsel for the defendant No. 1 to represent the Administrator of the Society. It is against this decree and judgment, passed by the learned Additional District Judge that the plaintiff has filed the present appeal.

(3.) IT is contended by the learned Counsel for the appellant that the defendant cannot be allowed to take a contrary plea by way of filing an additional written statement. It is further submitted by the learned Counsel for the appellant that the amendment in the plaint allowed by the trial court, empowers the defendant to file written statement only with respect to amended petition and not a de -nove written statement. In support of its case, the learned Counsel for the appellant has placed reliance over: Ditta Ram v. Amar Chand and Panna Lal v. Manak Lal RLW 1970 page 394, Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co. : [1977]1SCR728 . The learned Counsel for the respondent No. 1, on the other hand, has supported the order -passed by the Court below and has submitted that when once the plaint has been allowed to be amended after filing of the written statement then the defendant cannot be debarred from submitting fresh written statement and taking additional pleas. In support of its case, the learned Counsel for the defendant has placed reliance over: Girdhari Lal v. Krishan Datt AIR 1960 Punjab 575. New Bank of India Ltd. v. Smt. Raj Rani , Jharakhand Mines and Minerals Ltd. and Anr. v. Nand Kishore Prasad and Ors. : AIR1969Pat228 , Ram Chandra v. Mahendra Singh and Thargyil Sarada and Anr. v. Vovindan and Anr. 0043/1981 : (1983)2SCC276 .