A defendant cannot take up new or inconsistent pleas in an additional written statement filed under Order VIII, Rule 9 of the CPC without seeking an amendment of the pleadings under Order VI, Rule 17 of the CPC.

D. B. Lal, J. :- In these three revisions : C. R. No. 2 of 1976, C. R. No. 40 of 1976 and C. R. No. 33 of 1974, since a common question of law arises for our consideration, we have chosen to decide them by giving a common judgement.

2. In C. R. No. 2 of 1976, the original claim of the plaintiff-respondent was of Rs. 20,360/- and subsequently by way of amendment the plaintiff sought for the enhanced claim of Rs. 35,800/-. Accordingly after allowing the amendment, under O.8, R.9 of the Civil P.C. the court asked for additional written statement. When the said additional written statement was filed, it was alleged that certain new grounds of claim were pleaded and certain allegations of fact inconsistent with the previous pleadings were also made. The learned Subordinate Judge held that the defendant, without seeking amendment of the written statement, could not take up such new pleas which could even be inconsistent with the pleas already taken in the previous written statement. Following a decision of this Court in Dittu Ram v. Amar Chand (AIR 1961 Him Pra 46), the Subordinate Judge did not permit the defendant to file the additional written statement. He rather asked him to apply for amendment of the pleadings. There is also another short ground taken in this revision which relates to the payment of Rs. 100/- as costs subject to which the plaint was permitted to be amended. That point, however, should not engage our attention because the learned counsel concedes that Rs. 100/- shall be paid to the defendant and so, that part of the controversy no longer remains to be resolved.

3. In C. R. No. 40 of 1976, a plea was raised on behalf of the defendant that the suit was undervalued for purposes of court-fee and jurisdiction. In view of that plea taken by the defendant, the plaintiff sought for the amendment and alteration in the valuation put in the plaint. When the plaint was thus amended, under O.8, R.9 of the Civil P.C. the Court directed that the additional written statement be filed While filing the written statement, again it was alleged that certain pleas were taken which were new grounds of claim and certain allegations of facts inconsistent with the previous pleading were also made. The learned Subordinate Judge considered Dittu Ram v. Amar Chand (supra) as well as Tek Chand Chitkara v. Union of India (ILR (1974) Him Pra 616), and held that the additional written statement could not set up new pleas or inconsistent facts in derogation of O.6, Rule 7 without seeking an appropriate amendment of the pleadings. Accordingly the learned Subordinate Judge rejected the additional written statement and directed the defendant to file another additional written statement in accordance with law.

4. In C. R. No. 33 of 1974, from some of the original plaintiffs one Santosh Kumari had purchased the property during the pendency of the suit. Accordingly she applied for substitution of her name in place of the vendors. The plaint was amended and under O.8, R.9 the defendant was directed to file additional written statement. Again in that case it was alleged that in the additional written statement certain inconsistent pleas were taken and contradictory facts were alleged as compared to the original pleadings on behalf of the defendant. The learned Subordinate Judge, however, found that no new plea was taken and rather some clarification of the previous pleas was made. He further found that while filing the additional written statement, the defendant was at liberty to take any plea he preferred because the very order made by the court directing him to file an additional written statement justified the taking up of even inconsistent pleas. So saying the learned Subordinate Judge allowed the amended written statement. The plaintiff has felt aggrieved and he has filed the present revision.

5. Thus it is evident that in all the three revisions a common question of law arises as to whether in a case where plaint is amended and the court dir