IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 OP(C).No. 1035 of 2010(O) ------------------------- PETITIONER: ------------------------------ BOSSY THOMAS, S/O. C.C.THOMAS, AGED 56 YEARS, CHAKKALAYIL HOUSE, KUMBILAPPILLY ROAD, CHALIKKAVATTOM VENNALA. BY ADV. SRI.K.R.VINOD RESPONDENTS: --------------- 1. SYBDARESHAN, AGED 42 YEARS, S/O. KARUNAKARAN, PADMAVILASAM HOUSE, S.R.P. MARKET.P.O, THAZHAVA, KARUNAGAPPILLY.690518 2. BORGIE THOMAS, AGED 36 YEARS, S/O. C.C. THOMAS, CHAKKALAYIL HOUSE, PANAMPILLY NAGAR,KOCHI-36. 3. BABYTHOMAS, AGED 77 YEARS, W/O. C.C.THOMAS, C/O. JOSEPH THOMAS, S/O. C.C. THOMAS, CHAKKALAYIL HOUSE, SURABHI NAGAR L.I.G.157, KAKKANAD.682030 4. JOSEPH THOMAS, AGED 48 YEARS, S/O. C.C.THOMAS. CHAKKALAYIL HOUSE, SURABHINAGAR, L.I.G. 157, KAKKANAD.682030 5. MRS. MOLY JOHNY, AGED 46 YEARS, PALLATHU HOUSE, PUTHIYA ROAD, PALARIVATTOM, KOCHI-682025. 6. MRS. LISSY PATRIC, AGED 38 YEARS, SAMUEL VILLA, M.T.M.820, MANDYA, KARNATAKA STATE-540701. 7. MRS. JANET JOMON, AGED 42 YEARS, W/O. JOMON, C/O. JOSEPH THOMAS, S/O. C.C. THOMAS, CHAKKALAYIL HOUSE, SURABHINAGAR, L.I.G. 157, KAKKANAD.682030 8. MRS. LEENA MARTIN, AGED 30 YEARS, W/O. MARTIN, PALLAYATHIL HOUSE, NEAR ST.JAMES, CHAMPAKARA, MARADU.P.O., KOCHI-19. OP(C).No. 1035 of 2010 9. MRS. GIGI BENNY, AGED 20 YEARS, W/O. BENNY, C/O. JOSEPH THOMAS, S/O. C.C.THOMAS, CHAKKALAYIL HOUSE, SURABHINAGAR, L.I.G. 157, KAKKANAD.682030 10. SISTER JESMI, AGED 36 YEARS, PRESENTATION CONVENT, CHERIAL.P.O., WARANGAL DISTRICT, ANDHRA PRADESH PIN-506223. 11.MRS. KUNJUMOL SUNDRESHAN AGED 38 YEARS PADMAVILASAM HOUSE, S R P MARKET P O THAZHAVA, KARUNAGAPPALLY 690518 12.C C THOMAS, AGED 86 YEARS (DIED) CHIMMARU, CHAKKALAYIL HOUSE, PERUMBANOOR DESOM ERNAKULAM REP.BY HIS NEXT FRIEND and GUARDIAN (SON) THOMAS KUNJUKUNJU, AGED 54 YEARS, S/o. C C THOMAS CHAKKALAYIL HOUSE, PERUMANOOR DESOM, ERNAKULAM 682015 13.THOMAS KUNJUKUNJU, AGED 54 YEARS S/o. C C THOMAS, CHAKKALAYIL HOUSE PERUMANOOR DESOM, ERNAKULAM 682015 14.KUNJUMON @ FRANCIS XAVIER, AGED 34 S/o. CC THOMAS, CHAKKALAYIL HOUSE C/o. JOSEPH THOMAS, SURABHI NAGAR L I G 157, KAKKANAD 682030 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1035 of 2010 --------------------------------------- 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 O.P(C).No.1035 of 2010 : 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 O.P(C).No.1035 of 2010 : 4 : 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/-