BOMBAY HIGH COURT
A.S. Chandurkar, J.
Shobha & Ors. —Petitioners
versus
Namdeo & Ors. —Respondents
Writ Petition No.5475 of 2015
Decided on 15.1.2016

IMPORTANT POINT
By filing subsequent pleadings under provisions of Order VIII Rule 9 of the Code, a new case cannot be permitted to be introduced by the plaintiff, but he can be permitted to explain additional facts that have been pleaded in the written statement.

Headnote:Civil Procedure Code, 1908 — Order VIII, Rule 9 — Application by plaintiff during trial of suit seeking permission to file written statement to the plea of defendants in their written statement — By subsequent pleadings u/o VIII Rule 9 CPC a new case could not be permitted to be introduced by plaintiff but he could be permitted to explain additional facts that were pleaded in written statement — Suit was filed by plaintiff seeking declaration of his 1/3rd share in compensation for acquisition of land — Defendants contested written statement on a plea of deed of partition but deed of partition was not filed with written statement — When plaintiff was confronted with deed of partition during trial that he sought to file written statement on the point — It could not be said that subsequent pleadings were either inconsistent with the case set up in plaint or a new case was being set up — Order allowing application suffered no illegality.

       Held: It can thus be seen that by filing subsequent pleadings under provisions of Order VIII Rule 9 of the Code, a new case cannot be permitted to be introduced by the plaintiff, but he can be permitted to explain additional facts that have been pleaded in the written statement. While the plaintiff cannot be permitted to raise any inconsistent pleas so as to alter his original cause of action, the same would only enable the plaintiff to putforth his positive case in reply to the defendants case as observed in Anant Construction Private Limited (supra). The same is in the nature of “confession and avoidance’.

       The facts of the present case indicate that the suit was filed by the plaintiff seeking declaration of his 1/3rd share in the amount of compensation. According to the defendant Nos.2 to 7, the plaintiff had no right in the amount of compensation on account of deed of partition dated 28.6.1997. By way of subsequent pleadings under provisions of Order VIII Rule 9 of the Code, the plaintiff intended to deny the legality of aforesaid document on various counts including the fact that their mother Laxmibai was alive when said document was executed. Thus, the pleadings in replication were not inconsistent with the case as set up in the plaint that the plaintiff had 1/3rd share in the amount of compensation. It, therefore, cannot be said that the subsequent pleadings were either inconsistent with the averments in the plaint or that a new case was being sought to be set up. The plaintiff was, therefore, justified in seeking leave to file subsequent pleadings.

       On the aspect of delay in seeking such leave, the plaintiff had explained in the application below Exhibit-53 as to why said application could not be moved earlier. Affidavit of the plaintiff’s Counsel was also filed in support of the stand that the document though filed on record, its copy had been misplaced by the plaintiff’s Counsel. The trial Court accepted said explanation and proceeded to allow the application below Exhibit-53. As observed by the Supreme Court in Olympic Industries (supra), an application under provisions of Order VIII Rule 9 of the Code could not be dismissed merely on the ground of delay. Moreover, the trial Court had imposed costs of Rs.1000/on the plaintiff while allowing the application.

       Thus, it can be seen that the trial Court did not commit any error of jurisdiction when it allowed the application below Exhibit-53. The trial Court has taken into consideration all relevant aspects before passing the impugned order. It is also to be noted that costs of Rs.1000/- imposed while allowing the application below Exhibit-53 on 24.7.2015 were duly received by the Counsel for the defendant Nos.2 to 6 on 6.8.2015 as can be seen from the endorsement in that regard on page 26 of the record. The application having been allowed subject to payment of costs and said costs having been accepted by the defendant Nos.2 to 6, they are, in fact, precluded from challenging the impugned order. As observed by the Supreme Court in Bijendra Nath Srivastava through legal heirs Vs. Mayank Srivastava, AIR 1994 SC 2562, where an order has been passed subject to payment of costs and the same are duly accepted by the other side without demur, the right to challenge the order subsequently is lost. Nevertheless, the challenge raised on behalf of said defendants has been considered and found to be without merit. (Paras 9, 10, 11 & 12)

       Result: Petition dismissed.