ORDER
G. Rohini, J.
1. This Revision Petition is directed against the judgment dated 5-8-2005 in I A. No. 750 of 2005 in O.S. No. 40 of 1994 on the file of the Court of the Senior Civil Judge, Kanmnagar.
2. The Revision Petitioners are the plaintiffs 2, 4 and 6 in O.S. No. 40 of 1994. The suit was initially filed by the father of the petitioners herein by name Sardar Darshan Singh for cancellation of the registered gift deed dated 3-5-1994 executed by him in favour of the defendant. It was pleaded by him that the gift deed in question was void since the signatures on the document were obtained by the defendant by misrepresentation without revealing the contents of the document by taking advantage of the fact that the plaintiff was aged 90 years and was unable to read the document. The suit was initially decreed ex parte on 7-2-1996. However, on an application made by the defendant, the said ex parte decree was set aside on 22-12-2004 and the suit was reopened. In the meanwhile, the sole plaintiff Sardar Darshan Singh died and the plaintiffs 2 to 13 were brought on record being the legal representatives of the deceased first plaintiff.
3. The defendant, who is no other than the daughter of the deceased first plaintiff, in her written statement denied the plaint allegations and claimed that she is the absolute owner and possessor of the suit premises. It is claimed that the gift deed dated 3-5-1994 was executed by the deceased first plaintiff on his own, out of love and affection and possession of the premises in question was delivered to her immediately. It is stated that she had leased out the premises to one R. Mohana Rao, who in collusion with the plaintiff and his sons got the suit filed for cancellation of the gift deed on the basis of the alleged revocation deed dated 28-5-1994.
4. While so, the revision petitioners/plaintiffs 2, 4 and 6 filed I.A. No. 750 of 2005 under Order VII (sic VIII) Rule9 CPC seeking leave to file roiomder to the written statement on the ground that it is necessary to place on record several other tacts regarding the possession and title of the suit property which are necessary and essential for disposal of the case. It was contended by them that the suit, in which an exparte decree was passed long back, was reopened against the legal heirs of the sole plaintiff in the year 2004 and in the written statement filed by the defendant thereafter so many false allegations are made and therefore, it is necessary to grant them leave to file a rejoinder. They also denied the plea of the defendant in her written statement that she has been in possession of the plaint schedule property.
5. The said application was opposed by the defendant stating that since the cause of action in the suit as pleaded in the plaint arose on 3-5-1994, the real controversy has to be decided only on the basis of the facts pleaded in the plaint and the allegations made by the petitioners, who are the legal representatives of the deceased sole plaintiff cannot be taken into consideration. It is also contended that the legal representatives of the sole plaintiff, who are subsequently brought on record as plaintiffs are entitled to take up the suit at the stage at which it was left when the plaintiff died and they cannot be permitted to plead any new facts by way of rejoinder.
6. The Court below after hearing both the parties, by order, dated 5-8-2005, dismissed I.A. No. 750 of 2005 holding that the plaintiffs cannot be permitted to set up a new plea as against the pleadings taken before. The said order is under challenge in this revision petition.
7. I have heard the learned Counsel for both the parties and perused the material on record.
8. According to the plaint dated 2-6-1991, (sic. 1994) filed by the deceased first plaintiff, he had leased out the suit schedule house to one R. Mohana Rao and that the said tenant was in occupation of the said premises. While alleging that the gift deed, dated 3-5-1994. was got executed Dy trie defendant by misrepresentation, it was pleaded that immediately rie executed another revocation deed dated 28-5-1994 and accordingly he sought for cancellation of the gift deed dated 3-5-1994.
9.The defendant in her written statement, while denying the allegations further pleaded that she had leased out the premises to one R. Mohana Rao, who in collusion with the sons of the plaintiff got filed the suit on false allegations. It was also pleaded that she has been receiving rents from the tenants and that she has been in exclusive possession and enjoyment of the suit schedule property through her tenants and that the plaintiff was out of possession after the execution of the registered gift deed dated 3-5-1994. It was also pleaded that after execution of the gift deed, she got constructed a tin shed in the open land and living with her family as owner and possessor.
10. Under Order VIII Rule 9 CPC, no pleading subsequent to the written statement of a defendant could be presented, except with the leave of the Court. In other words having regard to the facts and circumstances of a particular case, in exercise of its discretion the Court may permit subsequent pleadings by granting leave to the applicant.
11. The law is well settled that it is always open to the Court to take note all the events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties (Vide AIR 1974 SC 1178).
12. Hence, it is always open to the plaintiff to bring to the notice of the Court the subsequent events by way of rejoinder. However, such subsequent pleading, if contains allegation of fact inconsistent with the pleading in the plaint, cannot be allowed since the same is barred under Order VI Rule 17 of CPC. While interpreting the scope of Rule 17 of Order VI of CPC, it was held by the Courts in a catena of decisions that though inconsistent pleas can be raised by the defendants in written statement, the same is not permissible in case of plaint. It needs no reiteration that the plaintiff cannot be permitted to raise inconsistent pleas or to alter the cause of action stated in the plaint either by way of amendment under Order VI Rule 17of CPC or by way of a subsequent pleading rejoinder under Order VIII Rule 9 of CPC.
13. In the case on hand, as can be seen from the pleadings on record in the plaint itself it was pleaded by the deceased first plaintiff that he had leased out the suit premises to a tenant who continued to be in possession of the same.
14. The defendant in her written statement while claiming possession through the tenants, further pleaded that a part of the property is in her personal occupation.
15. However, the fact remains that whereas the suit was filed in the year 1994, the written statement came to be filed after 10 years in the year 2004. In the meanwhile, the sole plaintiff died and the suit is now being prosecuted by his legal heirs. In view of the long time gap, it is always open to the Court to take note of the subsequent events and for the said purpose, the plaintiffs can be permitted to file a rejoinder. However, as noted above, such rejoinder is impermissible if it sets up a plea inconsistent with the pleading in the plaint or where it alters the cause of action stated in the plaint or where the nature of the suit itself is affected. Similarly, the legal representatives of the deceased sole plaintiff who are now prosecuting the suit cannot be permitted to withdraw an admission made by the deceased plaintiff or to take a diametrically opposite stand since a legal representative of the deceased party represents only the asset of the deceased plaintiff and cannot take a fresh plea.
16. In the case on hand, the revision petitioners, while seeking leave of the Court to file a rejoinder, did not file the draft rejoinder proposed to be filed by them. Such draft has not been placed even before this Court.
17. Leave to file the rejoinder may be rejected only after going through the same, in case, the Court is of the opinion that such a rejoinder alters the cause of action pleaded in the plaint or on the ground that it makes out a new case resulting in injustice to the other side. Since admittedly the draft rejoinder was not filed, the Court below is not justified in presuming that the petitioners are proposing to set up a new plea.
18. The Court below committed an error in dismissing the application even without looking into the draft rejoinder. Hence the order under Revision which suffers from a patent error of law is hereby set aside and the matter is remanded to the Court below for consideration afresh on merits. The petitioners herein are directed to file the draft rejoinder before the Court below within a period of two weeks from the date of receipt of a copy of this order after serving a copy of the same on the respondent herein. Thereafter, the Court below shall give an opportunity to the defendant/respondent herein to file an additional counter, if any, in I.A. No. 750 of 2005 and thereafter pass appropriate order as in accordance with law in the light of the legal principles explained above.
19. The Civil Revision Petition is accordingly disposed of. No costs.