IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1035 of 2010(O)
1. BOSSY THOMAS, S/O. C.C.THOMAS,
... Petitioner
Vs
1. SYBDARESHAN, AGED 42 YEARS,
... Respondent
2. BORGIE THOMAS, AGED 36 YEARS,
3. BABYTHOMAS, AGED 77 YEARS,
4. JOSEPH THOMAS, AGED 48 YEARS,
5. MRS. MOLY JOHNY, AGED 46 YEARS,
6. MRS. LISSY PATRIC, AGED 38 YEARS,
7. MRS. JANET JOMON, AGED 42 YEARS,
8. MRS. LEENA MARTIN, AGED 30 YEARS,
9. MRS. GIGI BENNY, AGED 20 YEARS,
10. SISTER JESMI, AGED 36 YEARS,
For Petitioner :SRI.K.R.VINOD
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/12/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.1035 of 2010
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Dated this 08th day of December, 2010
JUDGMENT
Defendant No.4 in O.S.No.358 of 2005 of the court of
learned Principal Sub Judge, Ernakulam is the petitioner before
me challenging Ext.P5, order dismissing I.A.No.7689 of 2010
whereby petitioner wanted to file a separate written statement
with a counter claim which took up inconsistent plea from Ext.P2,
joint written statement allegedly filed by petitioner along with
defendant Nos.3, 4, 6 to 11 and 13.
2. Respondent No.13 filed a suit for declaration that sale
deed No.5253 of 2004 in the name of respondent No.1 is null and
void (for reasons stated in the plaint) and for a decree for
prohibitory injunction. As aforesaid there is Ext.P2, written
statement which allegedly contained signature of petitioner also
as per which they supported the stand of defendant No.1. While
so, petitioner appeared in court and represented that he has not
signed Ext.P2, joint written statement and that an advocate who
is closely related to petitioner and others had stealthily obtained
signed blank paper from him. Petitioner and defendant No.6
filed I.A.No.7281 of 2010 alleging that they have not signed
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: 2 :
Ext.P2, joint written statement. At that stage the advocate who
was appearing for petitioner and others relinquished
engagement. Thereafter another lawyer appeared for petitioner
and defendant No.6. Then came I.A.No.7689 of 2010 to receive
additional written statement and counter claim at the instance of
petitioner. That application was resisted by plaintiff and others
and it resulted in Ext.P5, order. Learned counsel contends that
petitioner is prepared to withdraw the counter claim and that
petitioner may be permitted to file additional written statement
stating true facts. According to the learned counsel, Rule 9 of
Order VIII of the Code of Civil Procedure permits a party to file
additional written statement and petitioner may be permitted to
file atleast an additional written statement even if Ext.P2, joint
written statement remained on record. Learned counsel
submitted that it was under the circumstances stated in Ext.P4,
application that Ext.P2, joint written statement happened to be
filed and submitted that if in the present situation a decree is
passed in favour of defendant No.1, petitioner will not even be
able to challenge that decree in the light of Ext.P2, joint written
statement.
O.P(C).No.1035 of 2010
: 3 :
3. Under Rule 7 of Order VI of the Code, no pleading
shall, except by way of amendment raise any new ground of claim
or contain any allegation of fact inconsistent with the previous
pleadings of the party pleading the same. Hence petitioner
cannot be permitted to file additional written statement under
Rule 9 of Order VIII of the Code inconsistent with or, taking up a
new plea than what is contained in Ext.P2. Doing so will be
violating the mandatory provisions of Rule 7 of Order VI of the
Code and hence question of petitioner being permitted to file
additional written statement so far as Ext.P2, joint written
statement remains does not arise.
4. Then the question is whether petitioner could be
permitted to resile from Ext.P2, written statement in the
circumstances stated in Ext.P4, application. There, it is stated
that the advocate who was closely related to the petitioner and
others obtained signed blank papers and which has been made
use of to prepare Ext.P2, joint written statement. But it is
relevant to note that what was contended by petitioner in
I.A.No.7281 of 2010 is that he has not signed Ext.P2. Thus, in
the same proceedings petitioner has taken up inconsistent stand
as to his signature in Ext.P2. It appears to me that petitioner
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now wants to change/sides and support plaintiff for which Ext.P2
stand in the way and he wants to some how avoid Ext.P2. Parties
cannot be permitted to take such inconsistent stand to upset the
proceedings in court. It is when the case was posted for further
evidence that petitioner came up with I.A.No.7281 of 2010. In
the circumstances, request to withdraw from Ext.P2, joint written
statement also cannot be allowed. I do not find reason to
interfere with the order under challenge.
This petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-