The main legal point established in the judgment is that there cannot be two contradictory written statements on record and that no provision in the Civil Procedure Code enables the court to permit the substitution of one written statement for another.

N.K. Mody, J.

1. Being aggrieved by the order dated 15-4-2009 passed by ADJ, Jaora, District-Ratlam in civil suit No. 24-A/2007 whereby the application filed by the Respondent No. 2 under Section 151 of Code of Civil Procedure was allowed with a liberty to Respondent No. 2 to file a fresh written statement, the present petition has been filed.

2. Short facts of the case are that Respondent No. 1 filed a suit for specific performance against the Petitioner and rest of the Respondents. In the said suit a joint written statement was filed by the Petitioner and Respondent No. 2 wherein the allegations made in the plaint were denied. Later on an application was filed by the Respondent No. 2 wherein it was alleged that signatures have wrongly been obtained from the Respondent No. 2 in the written statement jointly submitted by Petitioner and Respondent No. 2. It was alleged that fraud was played over the Respondent No. 2. It was prayed that Respondent No. 2 be permitted to withdraw the written statement with liberty to file a fresh written statement. The application was opposed by the Petitioner. After hearing the parties learned trial Court allowed the application filed by the Respondent No. 2 against which the present petition has been filed.

3. Mr. M. K. Jain, learned Counsel for the Petitioner argued at length and submits that the impugned order passed by learned trial Court is illegal, incorrect and deserves to be set aside. It is submitted that as per law there cannot be two contradictory written statements. It is submitted that in the facts and circumstances of the case the impugned order passed by learned trial Court cannot be allowed to sustain. It is submitted that the petition filed by the Petitioner be allowed and the impugned order passed by learned trial Court be set aside.

4. Mr. Sumit Samvatsar, learned Counsel for the Respondent No. 1 submits that since the allegation of the Respondent No. 2 was that fraud was played over the Respondent No. 2 while obtaining the signatures in joint written statement filed by the Petitioner and Respondent No. 2, therefore, learned trial Court committed no error in passing the impugned order. It is submitted that the petition filed by the Petitioner be dismissed.

5. Order VIII of Code of Civil Procedure deals with the written statement, Rule 1, Order VIII of Code of Civil Procedure reads as under:

1. Written statement.- The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

[Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]

6. In the matter of Kallampudi Narayanappa v. Kaligotla Suryanarayana AIR 1950 Mad 46 wherein Madras High Court has held that there is no provision in the Civil P.C. to enable the Court to permit the substitution in toto one written statement for another.

7. Since the written statement is on record which is a joint written statement of Petitioner and Respondent No. 2, therefore, even if, the allegation was that fraud was played while obtaining the signatures on joint written statement, then too, no permission to file a fresh written statement could be given to the Respondent No. 2 as there cannot be two written statements on record. In the facts and circumstances of the case, the impugned order is liable to be set aside. In view of this, the petition filed by the Petitioner is allowed and the impugned order so far as it relates to the application filed by the Respondent No. 2 is concerned, is set aside with a liberty to Respondent No. 2 to submit the facts and subsequent events by way of an affidavit.

8. With the aforesaid observations, petition stands disposed of C.C. as per rules.