JUDGMENT
Vinod K. Sharma, J.
1. This order will dispose of Civil Revision No. 5866 of 2005 and Civil Revision No. 5867 of 2005 involving common question of law and facts. However, for facility of reference, facts have been taken from Civil Revision No. 5866 of 2005.
2. The facts leading to the present revision are that the plaintiff-respondent had filed a suit challenging the validity of registered Will dated 5.10.1972 in favour of petitioner-defendant No. l. The plaintiff-respondent field an application under Order 6 Rule 17 read with Order 1 rule 10 of the Code of Civil Procedure for amendment of plaint in order to challenge the decree dated 20.7.1991 passed against petitioner No. 1 and in favour of petitioner Nos. 3 to 5 and also sought pleading (impleading ?) of petitioner Nos. 3 to 5 in the suit. The aforesaid application was allowed by the trial court. The said order was challenged by the present petitioners by taking a plea that the plaintiff-respondent was an imposer and had no right in the suit land. It was claimed that he was son of Sita Ram, who was the husband of Shakuntala and not the son of Kailasho Devi as alleged by him. It was further pleaded by the petitioner-defendants that the plaintiff-respondent was not in possession of the suit land. Therefore, the suit was not maintainable as no relief of possession was prayed for.
3. The plaintiff-respondent thereafter filed another application on 13.1.2004 praying for amendment of the plaint. Alongwith this application, another application under Order 14 Rule 5 C.P.C. was also moved by him seeking framing of additional issues. In the application, the plaintiff had sought an amendment of the plaint by seeking to declare him as owner in joint possession of suit land and further sought amendment in the prayer clause. He also sought framing of issues afresh in the following terms:
1. Whether Smt. Kailasho Devi now deceased the mother and Smt. Kalawati defendant No. 2 being the daughters are natural legal heirs of Smt. Chhohari Bai widow of Mam Chand deceased, if so, to what effect? OPP
2. If issue No. 2 is proved, whether the plaintiff is the son of Kailasho Devi daughter of Smt. Chhohari Bai and entitled to succeed to her estate, if so to what effect and to what extent? OPP
3. If issue No. 1 and 2 are proved, whether Smt. Chhohari Bai deceased executed a valid and genuine Will dated 29.7.1972/5.10.1972 in favour of defendant No. 1, if so, to what effect? OPP
4. In case the issue No. 3, is not proved, whether the mutation No. 770 dated 11.8.1982 sanctioned on the basis of impugned Will dated 5.10.1972 and also the jamabandi prepared on the basis of said mutation are illegal, null and void and liable to be corrected as prayed for in the plaintiff (plaint?)? OPP
5. Whether the judgment and decree both dated 20.7.1991 suffered by the defendant No. 1 in favour of the defendant No. 2 to 5 in civil Suit No. 292 of 1991 and the mutation No. 1025 dated…sanctioned thereon and the jamabandi for the year 1997-98 and the subsequent jamabandi implementing this decree and mutation are illegal, null and void and liable extent? OPP
6. Whether the suit of the plaintiff is time barred?
7. Whether the plaint does not disclose any cause of action, if so, to what effect? OPD
8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
9. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
10. Whether the suit of the plaintiff is not maintainable as alleged in the written statement? OPD
11. Relief.
The said application for amendment was not objected to by the defendant-petitioners nor any objection was raised to the framing of additional issues in view of the consent given by the defendant-petitioners. Both the applications were allowed subject to payment of costs. The trial Court passed the following order on 1.3.2005 which reads as under:
That on the basis of the above statement on 1.3.2000, both the applications filed by the plaintiff-respondent were allowed by the trial Court and the case was fixed. The said order read as under:
Present: Shri V.B. Bhatti, counsel for the plaintiff.
Shri R.D. Bali, counsel defendants No. 1, 2 and 4.
Defendant No. 3 to 5 ex parte.
Learned Counsel for the defendants No. 1, 2 and 4 made statement that he no objection if the application under Order 6 Rule 17 C.P.C. is allowed. Heard. In view of the statement of counsel for the defendant the applications are allowed. Now to come upon on 5.4.2005 for filing of amended plaint and for framing of additional issues.
Thereafter, the learned trial Court was pleased to pass the following orders on 5.4.2005 and 10.5.2005:
Present: Shri V.B. Bhatti, counsel for the plaintiff.
Shri R.D. Bali, counsel defendants No. 1, 2 and 4. Defendant No. 3 to 5 ex parte
Amended plaint filed. Copy given. Now to come up on 9.4.2005 for framing of additional issues.
Sd/- C.J. (JD) Karnal
5.4.2005
Present: Shri V.B. Bhatti, counsel for the plaintiff.
Shri R.D. Bali, counsel defendants No. 1, 2 and 4.
Defendant No. 3 to 5 ex parte.
Amended written statement filed. Now to come up in 21.5.2005 for framing the additional issues, if any.
Sd/- C.J. (JD) Karnal
10.5.2005.
4. It was the case of the petitioners that due to typographical error in the order dated 5.4.2005, the case was adjourned for framing of additional issues and no mention was made to the filing of the amended written statement and that had necessitated the passing of order on 10.5.2005 reproduced above. Since there was a discrepancy in the orders dated 5.4.2005 and 10.5.2005 due to typographical mistake, an application was moved under Section 153 of the Code of Civil Procedure for amending the said defect or error. However, the said application was rejected by the learned trial court vide order dated 6th October, 2004 which is under challenge in the present civil revision.
5. It is also pertinent to mention here that the plaintiff-respondent had also moved an application under Order 8 Rule 10 of the Code of Civil Procedure with a prayer that the defendant-petitioners had no right to file the amended written statement to the amended plaint and the same be struck off from the record. It was also claimed that as defendant Nos. 3 to 5 had already been proceeded ex parte, they had no right to file the amended written statement. The learned trial Court allowed the said application vide impugned order dated 6.10.2004, the operative part of which, reads as under:
I have heard learned Counsel for the parties and have gone through the case file very carefully. It is admitted fact that the application of the applicant/plaintiff under Order 6 Rule 17 C.P.C. qua the part of prayer para and the application under Order 14 Rule 5 C.P.C. for framing of additional issues were allowed on the statement given by the counsel for the defendants No. 2 and 4 whereby the plaintiff was allowed to file amended plaint on 1.3.2005 qua amended part f prayer para. Perusal of the file shows that the defendant No. 3 was proceeded against ex parte on 9.10.2001. In this case, the application of the applicant/plaintiff under Order 6 Rule 17 C.P.C. was allowed with the consent of counsel for the defendants No. 1, 3 and 4 whereby only part of prayer para of the plaint was amended. So, there was no need to file amended written statement by the defendants No. 1, 2 and 4. The present case pertains to the year 1994 and is at the stage of rebuttal evidence and arguments and if the defendants are allowed to file amended written statement, it will cause delay in the proceedings of this case. Moreover, both the parties have already adduced their respective evidence. So the present application is hereby allowed whereby the amended written statement filed by the defendants/respondents is ordered to be struck off from the record. However, the written statement already filed by the defendants, if any, be considered. Now to come up on 14.10.2005 for framing of additional issues.
6. Mr. Ashish Aggarwal, learned Counsel for the petitioner has assailed the impugned order on the plea that whenever a plaint is allowed to be amended, a right accrues to the defendant to file the amended written statement. In support of his contention, he placed reliance on the judgment of this Court in Jia Lal and Anr. v. Savitri Devi and Anr. , wherein this Court was pleased to order as under:
This revision petition has been filed by the defendants. Shortly stated that the facts are that the plaintiff-respondents (hereinafter referred to as the plaintiffs) filed amended plaint to which the defendant-petitioners (hereinafter referred to as the plaintiffs) filed amended plaint to which the defendant-petitioners (hereinafter referred to as the defendants) sought to file the amended written statement. Court below has disallowed the filing of the written statement of the amended plaint on the ground that the filing of written statement is only an empty formality and would be only time consuming because in the plaint only relief clause has been amended, it was that there was no necessity to file written statement. Defendants being aggrieved have come against the said impugned order on the plea that the defendants would be within their right to file amended written statement to amended plaint as a right has accrued to the defendants to file the amended written statement to the amended plaint. As soon as an amended plaint is filed, it replaces the original plait and a right has accrued to the defendants to file the written statement to the amended plaint, otherwise at any stage it would be presumed that the defendants did not choose to file their pleadings by filing an amended written statement. Defendants, under the circumstances, would be entitled to file their amended written statement as the original written statement filed against the original plaint cannot be read as a part of the pleadings.
2. For the reasons recorded above, the revisions petition is allowed, the impugned order of the Court below is set aside. The defendant-petitioners would be entitled to the file the written statement to the amended plaint. No costs.
7. Learned Counsel for the petitioners next contended that the right of a party to join proceedings in spite of ex parte order could not be denied to the party under the provisions of Order 9 Rule 6 and 7 of the Code of Civil Procedure. For the said purpose, reliance was placed on the judgment of this Court in Hari Inder v. Brij Kumar Dhir 1986 R.R.R. 53. Learned Counsel also placed reliance on a Division Bench judgment of this Court in the case of Mahant Ram Ji Das v. Bhupinder Singh and Ors. (1962) 64 P.L.R. 590, to contend that the ex parte order is valid for the day and does not apply to the future hearings. Further the Counsel by making a reference to the judgment of the Hon’ble Supreme Court in Arjun Singh v. Mohindra Kumar and Ors. contended that even if a party fails to show a good cause for non appearance, even in such a case, he cannot be penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial and he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus, the contention of the learned Counsel for the petitioners is that the trial Court could not debar the petitioners from participating in the proceedings. As in the present case the defendant-petitioners had been debarred from filing the amended written statement to the amended plaint and they be also allowed to participate in the proceedings.
8. Mr. Yogesh Chaudhary, learned Counsel, appearing for the respondent-plaitniff, has supported the order passed by the trial Court by placing reliance on the judgment of the Hon’ble Supreme court reported as Gurdial Singh and Ors. v. Raj Kumar Aneja (2002-1) 130 P.L.R. 835 (S.C), and argued that though a party gets a right to amend his pleadings in case the application of the opposite party under Order 6 Rule 17 C.P.C. is allowed, but the same has to confine to the plea introduced by way of amendment by the opposite party and no new plea can be permitted to be added in the garb of consequential amendment. In case any such action is to be taken, then it is incumbent upon the party to apply for amendment by way an independent application. The plea of the learned Counsel for the respondent is that in the garb of amended written statement, the petitioners cannot substitute their written statement.
In view of the admitted position explained above, it would be seen that the order impugned cannot be sustained.
9. The learned trial court had disallowed the filing of the amended plaint by making a reference that by way of amendment the plaintiff-respondent has merely sought to amend his prayer clause only and, therefore, there was no need to file the amended written statement.
10. The findings of the learned trial Court cannot be sustained as the amended prayer clause also gives right to defendants to raise additional preliminary issues with regard to grant of relief sought by way of amendment. The reasoning, given by the trial Court that the filing of the amended written statement would delay the proceedings of the suit, cannot be accepted as the plaintiff cannot take advantage of his own wrong.
11. In case, the plaintiff chooses to file the application for amendment of the prayer clause at such a belated stage, the right of the defendants to file the amended written statement cannot be taken away. However, the same can be subject to payment of costs and limited to the amendment made in the plaint.
12. The Court has also to see as to the rights of the defendants, who were proceeded ex parte and they can put in appearance and join the proceedings when the amended plaint is filed. Their right to participate in the proceedings at that stage cannot be taken away. This aspect of the matter has been completely overlooked by the learned trial Court. In this view of the matter, both the civil revisions are allowed, the impugned order dated 6.10.2004 is set aside and the learned trial Court is directed to re-decide the applications filed by the parties in accordance with law. The parties through their Counsel are directed to appear before the trial Court on November 21, 2006.