Partly allowed

Bina Gupta and Anr. v. Manjira Datta and Ors.

Punjab & Haryana HC6 Sept 2010CR/5513/2009

Case brief

AI extract

What is this about?

The High Court, in a revision petition, held that Order 8 Rule 9 CPC is independent of Order 6 Rule 17 CPC. The trial court erred in dismissing an application for an additional written statement without deciding it on merits, as the order directed by the trial court was voidable under Article 227.

What did the court decide?

The impugned order dismissing the application under Order 8 Rule 9 CPC is set aside. The case is remanded to the trial court to adjudicate the application on merits afresh.

Bina Gupta and Anr. Vs Manjira Datta… — Civil Procedure and Limitation | Punjab & Haryana HC (2010)

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Civil Revision No. 5513 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 5513 of 2009 (O&M) Date of decision: 06.09.2010

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Mrs. Bani Gupta and another

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....Petitioners

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Versus

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Ms. Manjira Datta and others

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....Respondents

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CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

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Present: - Mr. R.L. Batta, Sr. Advocate, with Ms. Geeta Sharma, Advocate, for the petitioners. Mr. Rishab Raj Jain, Advocate, and Mr. Naveen Sharma, Advocate, for respondent No.1.

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VINOD K. SHARMA, J (ORAL)

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This revision petition, under Article 227 of the Constitution of India, is directed against the order dated 25.8.2009, passed by the learned Additional District Judge, Gurgaon, vide which the application moved by the petitioners under Order 8 Rule 9 of the Code of Civil Procedure to file additional written statement, stands declined.

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The defendant/petitioners prior to filing application under Order 8 Rule 9 of the Code of Civil Procedure, moved an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement to take an additional plea, to challenge the 'Will' alleged to be executed in favour of the plaintiff/respondent.

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The application moved by the petitioners under Order 6 Rule 17 of the Code of Civil Procedure was dismissed as not competent, as it was moved after the commencement of trial.

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The petitioners thereafter moved an application for recalling the order passed by the learned trial Court dismissing the application

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Civil Revision No. 5513 of 2009 (O&M)

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moved under Order 6 Rule 17 of the Code of Civil Procedure.

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The application was rightly dismissed, as the remedy with the petitioners was either to approach this Court by invoking the revisional jurisdiction or in the alternative only review could be filed by making out the ground for review. No fault, therefore, can be found with the dismissing of the application for recall of order passed under Order 6 Rule 17 of the Code of Civil Procedure.

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The petitioners had also filed an application under Order 8 Rule 9 of the Code of Civil Procedure for filing additional written statement.

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The learned trial Court dismissed the second application also taking into consideration, that on earlier occasion application moved by the petitioners under Order 6 Rule 17 of the Code of Civil Procedure had been dismissed, having been filed after the commencement of trial. The learned Court did not decide the application on merit.

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Order 8 Rule 9 of the Code of Civil Procedure reads as under:

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“ 9. Subsequent pleadings . - No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counterclaim 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 of not more than thirty days for presenting the same.”

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Reading of the provisions of Order 8 Rule 9 of the Code of Civil Procedure show that it is within the discretion of the Court to direct a party to file written statement or additional written statement by fixing the time of not more than 30 days for presenting the same. The suo motu powers vested in the Court can also be exercised on an

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Civil Revision No. 5513 of 2009 (O&M)

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application moved by the petitioners.

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It is well settled law, that provisions of Order 8 Rule 9 CPC are independent of the power vested in the Court under Order 6 Rule 17 of the Code of Civil Procedure.

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The Court was, therefore, required to decide the application under Order 8 Rule 9 CPC independently without considering the order passed on application moved under Order 6 Rule 17 CPC.

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The reading of impugned order shows, that learned Additional District Judge did not consider the application on merit by recording an independent finding as to whether any case for filing additional written statement was made out or not.

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In view of the reasons mentioned above, the impugned order dismissing the application under Order 8 Rule 9 CPC cannot be sustained in law, and is accordingly set aside.

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The case is remanded back to the learned Additional District Judge, Gurgaon, for adjudicating the application filed by the petitioners for filing additional written statement on merits afresh, in accordance with law. It will be open to the Court either to accept or reject the application on merits.

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Parties through their counsel are directed to appear before the learned Additional District Judge, Gurgaon, on the date already fixed.

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Revision partly allowed.

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No costs.

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(Vinod K. Sharma) Judge

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September 06, 2010 R.S.

Bina Gupta and Anr. v. Manjira Datta and Ors.

Case brief

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Bina Gupta and Anr. v. Manjira Datta and Ors.

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