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When court should not strike off additional written statement of defendant?

IN THE HIGH COURT OF MADRAS

C.R.P. No. 2318 of 2003

Decided On: 25.06.2004

Sri Srinivasmurthy Mandiram
Vs.
Mrs. Gnanasoundari

Hon’ble Judges/Coram:
M. Thanikachalam, J.
Citation: AIR 2004 Mad 518

1. The revision petitioner, aggrieved by the order passed by the trial Court, in not accepting his claim, to strike out the averments in the additional written statement, has preferred this revision petition.

2. The revision petitioner as plaintiff had filed a suit against this respondent and two others, for declaration that the defendants are trespassers, that they should be directed to deliver possession of the property, with past as well as future profits, at specified rates, with some other ancillary relief.

3. The respondent herein, who is the first defendant in the suit, had filed a written statement more or less admitting the title of the plaintiff, claiming lease hold interest over the site, under which, claiming further protection under City Tenants Protection Act, etc., raising certain other defence also.

4. After the filing of the original written statement, the first defendant/respondent herein had filed a petition, before the trial Court, for the reception of an additional written statement and the same was allowed, despite objection by the revision petitioner/plaintiff. The plaintiff/revision petitioner had not questioned the order passed by the trial Court, granting permission to the first defendant, to file additional written statement. Thereafter, the plaintiff/revision petitioner had filed I.A. No. 11484/2002, before the trial Court to strike out the averments in paragraphs 1 to 9 in the additional written statement, thereby the plaintiff wanted to scrap the entire additional written statement, since it contained only paragraphs 1 to 9 apart from the cause title. As seen from the averments in the petition, according to the petitioner/plaintiff, the averments contained in paragraphs 1 to 9 of the additional written statement are inconsistent from the previous written statement, as well as they are scandalous, frivolous and vexatious in nature. This application to strike out the additional written statement was opposed.

5. The learned trial Judge, after considering the rival contentions of the parties, came to the conclusion that no case is made out, to strike out the averments in the additional written statement, the further fact being, the additional written statement was entertained, after hearing the parties in the I.A. In this view of the matter, the application came to be dismissed on 29.7.2003, which is under challenge.

6. Heard the learned counsel for the petitioner, Mr. K. Shakespeare and the learned counsel for the respondent, Mr. S. Subbiah.

7. The learned counsel for the revision petitioner would contend, that the averments in the additional written statement are not only diametrically opposite to the original stand taken by the first defendant in the written statement, but also they are against the decision rendered by this Court in some other proceedings and in this view, such defence should not be allowed to be raised. It is the further submission of the learned counsel, that if the averments in the additional written statement are allowed, that will cause prejudice to him, being in the nature of scandalous, frivolous and vexatious.

8. The submissions of the learned counsel for the respondent are, that the additional written statement was received only on application, after hearing the parties and in this view, it could not be scraped as claimed and that the averments in the additional written statement, even assuming that they are inconsistent with the previous statement, the defendant could take such a stand, which cannot be labeled either vexatious or scandalous or prejudicial and if at all, the nature of the allegations have to be decided only at the time of the trial.

9. In this context, one should remember, Order VIII Rule 9 which gives ample power to the Court, to grant leave, for filing additional written statement, from any of the parties to the suit and it does not restrict prescribing, what is the defence that has to be taken or something like that. It says,

“No pleading subsequent to the written statement of a defendant other than by way of defence to a 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.”
It does not say that the subsequent pleading viz., additional written statement should be consistent with the original written statement. It also does not say, that the ground of defence, which had arisen, after the institution of the suit alone should be included in the additional written statement. Therefore, generally, if any defence had not been taken in the original written statement, though it was available, that could be taken, by filing an additional written statement, and only to enable the defendant to raise that kind of plea also, Order VIII Rule 9 is intended. Therefore, when a defendant had raised a new plea, which is not covered in the original written statement or an inconsistent plea, against the original written statement, the same cannot be described or labeled as prejudicial defence or vexatious or scandalous, as understood under Order VI Rule 16 C.P.C. If the plaintiff/revision petitioner was aggrieved by the court’s order, in granting permission to file the additional written statement, the remedy would have been to challenge the same and not to file a petition under Order VI Rule 16 C.P.C., to strike out the entire defence. Admittedly, in this case, the plaintiff/petitioner had not challenged the order of the trial Court, granting permission, to file additional written statement and in this view, in my considered opinion, Order 6 Rule 16 C.P.C., is not available. Assuming that it could be raised even after the additional written statement is received, then we have to see, under what circumstances, the averments in the written statement could be scraped or struck out or amended.

10. Order 6 Rule 16 C.P.C. reads:

“The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit. Or

(c) which is otherwise an abuse of the process of the Court.”

11. The contention of the learned counsel for the plaintiff/petitioner is that the revision petitioner’s case comes under Rule 16(a) and (b). In this context, we have to see, whether the defence raised by the defendant is unnecessary, scandalous, frivolous or vexatious.

12. The plaintiff is one “Shri Srinivasamurthy Mandiram” represented by its Executive Trustee Mr. D. Srinivasan. It seems that the plaintiff claims that it is a private trust, not attracting the Rent Control proceedings. Admittedly, the first respondent’s husband was permitted to put up a shed for his business. After his death, the first respondent continues to be in possession of the property. Since the suit is filed for eviction, the legal representative of the original lessee, without questioning the status of the plaintiff, claimed protection under City Tenants Protection Act, as seen from the original statement, thereby conceding the title of the plaintiff. But, in the additional written statement, as pointed out by the learned counsel for the petitioner, some new defence was taken, as if the plaintiff trust is a public trust and that the suit for eviction is not at all maintainable, since the tenant is entitled to the protection of Tamil Nadu Buildings (Lease and Rent Control) Act, 1860.

13. True, as rightly submitted by the learned counsel for the plaintiff/revision petitioner, this defence is just inconsistent with the original defence. It is an admitted position that the defendant could take inconsistent plea and which plea he relies on or on which defence, he could succeed, are all materials to be decided at the time of the trial. Therefore, considering the inconsistent stand taken by the defendant alone, the additional written statement cannot be described as unnecessary, scandalous, frivolous or vexatious. Even if a case is decided previously against the first defendant or her husband, whether that would operate as res judicata or something like, has to be decided, if raised and on the basis of the previous decision, summarily a defendant cannot be prevented from raising the said plea. If there is any allegation, deviating from the subject matter of the suit, extraneously aiming against the individual, not connected with the subject matter for decision, in my opinion, then only it could be said, the pleadings are unnecessary or scandalous , frivolous vexatious, attracting Rule 16(a). In this case, as seen from the additional written statement, the respondent herein had questioned the status of the plaintiff, locus standi to maintain the suit for eviction, etc. and these matters have to be decided only at the time of the trial and the same cannot be struck out.

14. Rule 16(b) contemplates, if the pleading tend to prejudice, embarrass or delay the fair trial of the suit, then only the Court can order that the pleading should be struck out and not otherwise. By filing additional written statement, raising new plea, if the party feels that they are entitled to take inconsistent view, it cannot be termed as aimed to delay, which would tend to prejudice or embarrass or delay the fair trial. In this view of the matter, Rule 16(b) also fails to come to the aid of the plaintiff, to strike out the averments in the additional written statement. All the averments in the written statement are pertaining to the subject matter of the suit, whether it is decided in the previous suit or not and none of the averments could be brought within the umbrella of Rule 16(a)(b) of Order VI.

15. For the foregoing reasons, I find no reason of any kind to strike out the defence, which the first defendant is entitled to raise, to resist the suit, which are available under law. If at all, its acceptance or legality or relevance have to be decided at the time of the trial and under Order VI Rule 16, no finding could be given, as if the additional written statement is unnecessary, thereby depriving the right of the respondent.

16. The trial Court, though not considered the scope of Order VI Rule 16 C.P.C., the ultimate result is acceptable and in this view of the matter, I find no merit in the revision and the same deserves to be rejected.

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