IN THE HIGH comer ox-* KARNATAKA AT BANGALORE
DATED TI-HS THE 17TH DAY or DECEMBER.
BEFORE:
THE I-ION'BLE MR. JUSTICE ANANI). "
Writ Petition No.8939 orgéoogé '(QM:.cP§:)'--.: " ' S: S 'T
BETWEEN:
SR1 SHAMBANNA
S/0 BASAVARAJU .
AGED 39 YEARS _ ~ _
RESIDENT OF LALITHADRIPURA VLLAGE -. '
VARUNAHOBLI,MYSORETAL1J'K V ' is "
MYSORE CITY. _j ' PETETIONER
[By ;' Assts, AdvS.]
1. THE KARNAT1-'~E»KA EPOLICVE EMPLOYEES'
HOUSE BUILDING 'cQL01?EEAT1VE
S0c1EirYES(R),'VHAVEJG'D_S REGISTERED
OFFICE. 5x1'-NETAJI..VNA.GAR,
IIALALCHANDRA STREET,
.. FREPRESENTEDV S35 FTS SECRETARY,
- SRi."NAI'JJUNDE GOWDA.
T "SR1-v4EASAx;;Ai3AJU
._ S/'o .¥;\2I.AIL')A'I;'a'L}~I
. ' 'AGED 6:1; YEARS
13. "SM*r.S1 3\'rARNA
A W/Q "SR1 SSAMBANNA
' * AGED 29 YEARS
;'~_.4.' . V 'SMT DAKSHAYINI
W/O SR1 BASAVARAJU
AGED 29 YEARS
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8. The counsel for the petitioner would also place
reliance on a Judgment of the Madras High Court in the
case of 'KEM MUHAMMAD IBRAHIM
OTHERS vs. O.S.M. AHMED MARICAR' AIR
541, which was a case where..perm.issiorif'.'to7file
additional written statement, raising'iinconsistentfipleas,
was sought to be filed and tI1te"courtiheld~ a plead
if it does not result in anyVgaezn,'barrassrneiit.,.ofithe trial,
permission ou_ght;gtoVbeigrarited'; 2
9. Reliancei decision of the Madras
High C_0u_rt e of 'SR1 SRINIVASMURTHY
MANDIRAML *uVs.V" _1l'/IRS;:'d"'\.»t.'GlVANASOUNDARI' AIR 2004
the plaintiff had filed a suit for
deciaration'«that the defendants were trespassers. The
filed the suit more or less admitting
{the titleylof the plaintiff but claiming leasehold rights over
"..fthe'tisite." After filing of the written statement, the first
defendant had sought to file an additional written
statement and the same was allowed. The plaintiff had
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then draw attention to the provisions of Order VIII Rule 9
of CPC itself to demonstrate that it does not contemplate
any pleadings being filed subsequent to
statement and it is only the court which
power to call for any additional writt»en'staten1en:t;-- _
13. It was however open for "petitioner"'lto' have sought
for amendment of pleadnags court in
the case of *MoHAMMi3:l0 vs. SMT.
KHUYEJATUL 2001 KAR 4580
wherein 'partition and separate
possessionlfl if filed their written
statement They had taken the
contention that the sale in favour of the plaintiffs by the
vwas not valid and legal and it does not
hindthe"V4other':;'d'efendants. Secondly they claimed a pre-
f if _emptive to purchase one-fourth share from the first
if and when the plaintiffs purchased the one-
.l_Aié'fo"urthfflshare in contravention of the preemptive right, no
passed to them. Further, the sale transaction in
l favour of the plaintiffs is collusive and a sham transaction
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and that title did not pass. The trial court had framed
issues on those pleadings and thereafter an application
under Order VIII Rule 9 of CPC was
permission to file an additions} Written staten{1ent~.:
additional written statement,
contended that the plaintiffs"-~.,are "ltheir-L'
husbands and therefore the VApsale..d'eeds..i,1nd.erjtirhich the
plaintiffs claimed titlelltdoi tittle and in the
absence of they rnade parties to
the suit the This application
having defendants were before this
court. law on the point as laid
down in thlecdcase -of'..V'A}§iUNDHATI MISHRA vs. SR1 RAM
- l??ANI5ET7'--------l994 {21scc 29 and 's SRIDEVI vs. s
1989 [1] KLJ 100, which is also
referred the petitioner herein, this court held while
VK.,_l'1ieferringV't'o order VI Rule 7 of CPC that if a party wants to
new ground of claim or statement contending
V' jvllgllpégation of fact, inconsistent with the previous pleadings
Llof the parties, pleading the same shall be raised by way of
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amendment only. There is a total prohibition for pleading
new claims and inconsistent statements by any"-.other
mode except by way of amendment to the
statement. Though subsequent pleadings
under Order VIII Rule 9 of CPC,
use for raising pleas which are'..paltog€t}\1€r'p' "nevyj
inconsistent with the engin:a1.l:'l'jpieadtnge " written
statement. Order VI 'with a departure
from the previotis :v'Vl'3tule 17 of CPC
deals with and Order VIII
Rule 9 deiais pleadings. VVhen
these 'together, the distinction
becomes is clear by way of subsequent
galeafingsilwiunderiiOrtier'VIII Rule 9 of CPC new claims and
V'=ir1consis'te_r1t."pleas cannot be raised and for raising such
resort to Order V1 Rule 1'?' of CPC.
above contentions, the plea sought to be
[by way of additionai Written statement is certainly
" --«:VVlii1consistent with the pleadings in the written statement
4' filed by the second respondent herein, on the face of it.
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The question is whether such a plea could be permitted
under Order VIII Rule 9 of CPC. I am fully to
adopt the View of this court in
referred to {supra} which would p_rQh_ibit *
pleas being taken in terms of Order of
it is only by way of amendn1en’t…that’ “could-it
be incorporated. Insofar “prese’nt~..pet§tioner is
concerned, the written””statein_e§:nt be amended
was not even by statlernent was filed
by his he had merely
adopted.tl1e..’s$rne:i§:.; tlhe’-quiestion whether such an
amendn’1en’t4’_in the written statement of
another dexfenldant-vbyjhe-‘llwpetitioner is a further question
whichéwould arise’fs-riconsideration. Even otherwise, the
feriiarnendment under Order V1 Rule 17 of CPC
been filed at a stage before the parties going
triai.”
V’ ‘..1..5n. In the case on hand, the petitioner had filed an
-..d.’.aIAjp1icati0n seeking to file additional written statement at
“”,aV’stage when the evidence had commenced and the trial
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having proceeded notwithstanding the presentation of this
petition has reached the stage of final arguments and the
plaintiff has even addressed arguments and
down for the defendants’ arguments. At
to consider whether any additionzaiiihwritten can
be brought on record is not
pleas being inconsistent cannot’~:b_e’V..penr1itte_d way of
additional written statenient– the law as Iaid
down in MOHAMMED stated.
16. Therefore”i..__ the present writ
petition,and_,iS*:heroé%+*3I diSm’iss’ed.-
Sc1/ –
JUDGE