Partly allowed

Sandhyarani Debi v. Giridhari Pradhan

Orissa HC21 Aug 2023CMP/1083/2016

Case brief

AI extract

What is this about?

The High Court set aside a cryptic order rejecting a petition to set aside an ex-parte summons, directing a fresh hearing. It upheld the lower court's rejection of a petition for an additional written statement, holding inconsistent pleas require amendment under Order VI Rule 17 CPC.

What did the court decide?

CMP allowed to set aside the order under Order IX Rule 7 CPC; confirmation of rejection of petition under Order VIII Rule 9 CPC; direction for fresh hearing on Order IX Rule 7 CPC application.

Sandhyarani Debi Vs Giridhari Pradhan — Specific Performance | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1083 OF 2016

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(In the matter of an application under Article 227 of the Constitution of India, 1950)

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Sandhyarani Debi …. Petitioner
-versus-
Giridhari Pradhan and others …. Opp. Parties
Mr. Nirod Kumar Sahu, Advocate
(For Opposite Party Nos.6 and 8)
Advocate for the Parties
For the Petitioner : Mr. Samir Kumar Mishra, Senior Advocate
Being assisted by Mr. J.Pradhan, Advocate
For Opp. Parties : Mr. Nirod Kumar Sahu, Advocate
(For Opposite Party Nos.6 and 8)
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 21.08.2023
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JUDGMENT

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1. This matter is taken up through hybrid mode.

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2. Order dated 1^st July, 2016 (Annexure-5) passed by learned Additional Senior Civil Judge, Puri in CS No.298 of 2012 is under challenge in this CMP, whereby two applications; one under Order IX Rule 7 CPC and another under Order VIII Rule 9 CPC filed by the Petitioner/Defendant No.1(a) have been rejected.

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CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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3. It is submitted by Mr. Mishra, learned Senior Advocate that the suit has been filed for specific performance of contract by declaring the sale deeds dated 31^st May, 2010 executed by Defendant No.1 in favour of Defendant Nos.4 to 6 and another in favour of Defendant Nos. 2 and 3 to be illegal and void as well as for other ancillary and consequential reliefs. The Plaintiffs/ Opposite Party Nos.1 to 3 in the plaint claimed that they were Bhagchasi under Defendant No.1. Defendant No.1 filed written statement denying the pleading with regard to the allegation that the Plaintiffs were Bhagchasi under him. During pendency of the suit, Defendant No.1 died and he was substituted by his legal representatives. Subsequently, Defendant No.1(a) was set exparte and the suit proceeded. Accordingly, Defendant No.1(a) filed an application to set aside the ex-parte order. She also filed an application under Order VIII Rule 9 CPC to accept the additional written statement. Both the petitions were dismissed vide common impugned order under Annexure-5. Hence, this CMP has been filed.

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3.1 It is submitted by Mr. Mishra, learned Senior Advocate that order of rejection of the application under Order IX Rule 7 CPC is cryptic and non-speaking one. Grounds taken by Petitioner/Defendant No.1(a) to set aside the ex-parte order was not discussed by learned trial Court. Hence, the order rejecting the application under Order IX Rule 7 CPC is not sustainable and liable to be set aside. He further submitted that along with the petition under Order IX Rule 7 CPC, the Petitioner/Defendant

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CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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No.1(a) had also filed an application under Order VIII Rule 9 CPC to accept additional written statement stating that since the Plaintiffs were Bhagchasi under Defendant No.1 and were paying Rajbhag and are in possession over the suit property, the impletion of the substituted legal representatives of Defendant No.1 is unnecessary and the suit is not maintainable against them. Learned trial Court holding that since the original Defendant No.1 denied the plea that the Plaintiffs were Bhagchasi under him and were in possession over the suit property and the substituted legal representative, i.e., Defendant No.1(a) took an inconsistent stand to the effect that the Plaintiffs were Bhagchasi and are in possession over the suit property, the petition under Order VIII Rule 9 CPC is not maintainable and rejected the same.

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3.2 It is his submission that Petitioner/Defendant No.1(a) did not take a contrary stand in the written statement. He has only reflected the case of the Plaintiffs in their additional written statement and stated that the suit is not maintainable against the substituted legal representatives of Defendant No.1 on the pleading made in the plaint. Even if it is assumed that a contrary stand is taken the same is permissible in law in respect of written statement. He, therefore prays for setting aside the impugned order under Annexure-5 and to allow both the applications.

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Mr. Sahu, learned counsel for the purchasers/Opposite Party Nos.6 and 8 submits that learned trial Court has committed no error in rejecting both the aforesaid petitions. Since the CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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Petitioner/Defendant No.1(a) could not show sufficient cause for her appearance on the date when the matter was called for hearing, the order setting her ex-parte was refused to be recalled. As such, there is no illegality in rejecting such petition.

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4.1 Further, inconsistent plea in the written statement may only be introduced by filing an application under Order VI Rule 17 CPC and not otherwise. Referring to the provisions of Order VI Rule 7 CPC, it is submitted that contradictory plea can only be sought to be incorporated by seeking for amendment of the written statement. And in that event, the adversary should be given an opportunity of hearing. In support of his submission, Mr. Sahu, learned counsel for contesting Opposite Parties, placed reliance on a decision of this Court in the case of M/s Gannon Dunkerly and Co. Ltd. Represented through its Constituted Attorney Sri Sridhar Dubey Vs. Steel Authority of India Limited, Rourkela Steel Plant, Rourkela , reported in 76 (1993) CLT 655, wherein at para-6, is held as follows:-

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“6. For resolution of the controversy, reference to few relevant provisions of the Code is necessary. Order 8, Rule 9 of the Code lays down an important rule of pleading that no pleading subsequent to the written statement by a defendant other than by way of defence to a set off shall be presented except by leave of the Court. The rule requires leave of the Court before any party can make a further pleading after written statement has been filed. Where a defendant intends to file additional written statement, he must file an application showing the circumstances as to why he failed to raise the plea in the original written statement, and the other party must be given opportunity to meet the motion. In considering whether leave to file an additional written statement, should be granted or not, the delay that has taken place in

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CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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raising the contention raised in the additional written statement and the reason why those contentions were not raised before have to be considered. Though the Rule invests the Court with wide discretion and enables it to accept written statement filed subsequently, same is not to be accepted where a new case or facts inconsistent with the original written statement are sought to be brought on record. In this context, reference to provisions of Order 6, Rule 7 of the Code is necessary. The said rule stipulates 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. Thus, Order 6, Rule 7 of the Code is subject to the Order 6, Rule 17 of the Code under which the amendments are made. Therefore, provisions of Order 6, Rule 17 of the Code are to be kept in mind while accepting fresh pleadings raising new ground of claim of containing allegations of fact inconsistent with the previous pleadings of the party. A departure takes place when in any pleadings the party deserts ground' that he had taken in his previous pleading and resorts to another and different ground. The object of Order 6, Rule 7 of the Code is to prevent such a departure.”

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He, therefore, submits that since no application under Order VI Rule 17 has been filed for amendment of the pleading made by Defendant No.1 in his written statement, an inconsistent plea could not have ben taken; that too without affording an opportunity of hearing to the adversary. He, therefore, submits that learned trial Court has committed no error in rejecting both the applications.

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5. Considering the rival contentions of the parties and on perusal of record, it appears that while rejecting the application under Order IX Rule 7 CPC, learned trial Court has not assigned any reason thereto. It was rejected by a cryptic and non-speaking order. The plea taken by the Petitioner in her petition under Order IX Rule 7 CPC, has neither been discussed nor rejected. CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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Hence, the impugned order rejecting the application under Order IX Rule 7 CPC is not sustainable and is set aside.

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5.1 So far as the petition to accept the additional written statement is concerned, admittedly Petitioner/Defendant No.1(a) has sought to take an inconsistent stand in the additional written statement. In the written statement filed by Defendant No.1, the plea taken by the Plaintiffs that they were Bhagchasi under him, was denied and it is also denied that they are in possession over the suit property. But in the additional written statement, it has been stated that the Plaintiffs were the Bhagchasi under Defendant No.1 and they are in possession over the suit property. This being an inconsistent plea made in the written statement filed by Defendant No.1 could not have been sought to be introduced in shape of an additional written statement. The proper procedure for the Petitioner/Defendant No.1(a) was to file an application under Order VI Rule 17 CPC in view of the ratio decided in M/s Gannon Dunkerly and Co. Ltd. (supra) . Thus, learned trial Court has committed no error in rejecting such an application.

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6. In view of the above, while setting aside the order in respect of rejection of an application under Order IX Rule 7 CPC, this Court confirms the order passed by learned trial Court in rejecting the petition to accept additional written statement sought to be filed by Petitioner/Defendant No.1(a).

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CMP NO.1083 OF 2016

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 22-Aug-2023 12:06:49

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6.1 It is further directed that learned trial Court should consider the petition under Order IX Rule 7 CPC filed by the Petitioner/Defendant No.1(a) afresh giving opportunity of hearing to the parties concerned and dispose of the same by a reasoned order.

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7. With the aforesaid observation and direction, the CMP is allowed to the aforesaid extent.

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8. Interim order dated 9^th August, 2016 passed in Misc. Case No.1099 of 2016 shall continue till the next date.

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Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge

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s.s.satapathy

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CMP NO.1083 OF 2016

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Sandhyarani Debi v. Giridhari Pradhan

Case brief

What is this about?

What did the court decide?

Sandhyarani Debi v. Giridhari Pradhan

Case brief

What is this about?

What did the court decide?

What the court decided

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