P.A. Jayalakshmi VS H. Saradha & Ors. JUSTICE S.B. Sinha JUSTICE Deepak Verma, New Delhi; July 21, 2009, Code of Civil Procedure, 1908: Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional pleadings - Suit
for partition - Application filed by defendant-appellant seeking leave to file additional written statement - Rejected by Courts below - Justification of - Held: On facts, justified - The application was filed at a much belated stage - Statutory limitations brought about by reason of amendments in CPC to be kept in mind. Respondents filed suit for partition in the year 2004. Appellant filed written statement in 2006 and on 1-3-2007, filed application purportedly in terms of Or.VIII, r.9 CPC seeking leave to file additional written statement with regard to a Will in regard to the suit property, which was not mentioned in the written statement. By that time examination of one witness was over. The Will was purportedly executed in 1993 and it was urged by the appellant that she discovered the existence of Will only on 5-2-2007. The said application was dismissed by the Trial Court. Revision petition filed by appellant was dismissed by the High Court. It was contended that the Courts below failed to take into consideration that in effect and substance, appellant's application should have been treated to be one for amendment of written statement as envisaged under Order VI, r.17 CPC and not one for leave to file additional pleadings as envisaged under Or.VIII, r.9 thereof; that the appellant having raised a contention that she discovered the existence of Will only on 5-2-2007, even the requirements of the proviso appended to
Or.VI, r.17 CPC must be held to have been satisfied and that by reason of the said application, the appellant did not bring about any change in the principal contention raised in her written statement as the said Will was sought to be brought on record wherefor requisite pleadings were necessary only to support her case that the property in question was not a joint family property. Dismissing the appeal, the Court held, With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order VI Rule 17 CPC. Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 CPC provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.

In the present case, for reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI, Rule 17 of CPC. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII, Rule 9 of CPC . At no point of time, a contention was raised that she wanted to amend her pleadings.

Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. Noticeably one of the plaintiffs was examined on 1.3.2007. Despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.

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