IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 25559 OF 2008(P) -------------------------- OS.27/2004 OF SUB COURT,THODUPUZHA .................... PETITIONER: ------------- N. ASOK KUMAR, MANAYATHU HOUSE, 34/1130, BALAKRISHNA MENON ROAD, EDAPPALLY, ERNAKULAM. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENTS: ---------------- 1. ADIMALY BLOCK PANCHAYATH, ADIMALI.P.O, IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY. 2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 25559 OF 2008 ------------------------------------------ Dated this the 25th day of August, 2008 JUDGMENT Plaintiff in O.S.27 of 2004 on the file of Sub Court, Thodupuzha is challenging Ext.P7 order passed by Sub Judge in I.A.359 of 2006, whereunder Ext.P5 additional written statement was received under Rule 9 of Order VIII of Code of Civil Procedure. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel pointed out that Ext.P2 original written statement was filed by defendants 1 and 4 whereunder it was unambiguously contended that a beneficiary committee was formed for the construction of a bridge, which is part of the dream project of the public at large and the beneficiary committee was constituted for executing the necessary work and the bridge and approach road were proposed to be constructed exclusively through the river and Government land and the construction of the bridge has already been completed and the approach road on either side been formed and the entire WP(C)25559/08 2 construction activities have exclusively carried out in Government puramboke land. It was also pointed out that the written statement was filed on 9.9.2004. It was pointed out that under Ext.P5 additional written statement, a new plea contradictory to the pleadings in Ext.P2 is sought to be raised to the effect that the beneficiary committee could not execute the work consequent to the litigations and the bridge was constructed by the general public and they constructed the approach road and this case is contradictory to Ext.P2 pleading and in the light of Rule 7 of Order VI of Code of Civil Procedure, learned Sub Judge should not have allowed the defendants to file an additional written statement departing from the original plea except through an amendment and therefore Ext.P7 order is to be quashed. 4. Sub rule 7 of Order VI of Code of Civil Procedure provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with previous pleadings of the party, pleading the same. The argument is that under Ext.P2 it was admitted that the work was executed by the beneficiary committee constituted and it is contradictory to the case sought to be introduced by WP(C)25559/08 3 filing the additional written statement and being a departure it should not be permitted other than by an application under Rule 17 of Order VI of Code of Civil Procedure. 5. On hearing the learned counsel, I do not find any illegality or irregularity in Ext.P7 order warranting interference. By permitting defendants 1 and 4 to file additional written statement and receiving Ext.P5 additional written statement , it cannot be said that Court has accepted the contention raised in Ext.P5. Eventhough Ext.P5 additional written statement was received under Ext.P7 order, the original contention in Ext.P2 was not taken away. It is for the Court on the evidence to consider whether in the light of Ext.P2 admission in the written statement, the new case put forth in Ext.P5 can be accepted. Ext.P7 order will not disentitle the plaintiff to contend that the case pleaded in Ext.P5 has to be rejected or stand in the way of the Court holding that subsequent case cannot be accepted. Writ petition is disposed of accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-