IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1951 of 2007 SANTU MISTRI & ORS Versus THE STATE OF BIHAR & ORS ----------- 3. 27.11.2008 Heard Mr. Dhurb Narayan, learned Senior counsel appearing for the petitioners, and Mr. Ramashish, learned counsel appearing on behalf of the opposite parties. The issue which was before the court below and has been sought to be adjudicated by the impugned order could not have a cut and dry solution. True it is that an additional written statement under normal circumstances cannot be taken on record after the parties have already confined not only their pleadings but issues have also been framed and based on such issues the evidence is also sought to be adduced but then as always it is only an exceptional circumstance which can test the scope of substantive provision. It is for this purpose that Order 8 Rule 9 C.P.C. vests a discretionary power to the court to entertain an additional written statement at any stage. It would be really interesting to 2 note that suit in question came to be filed on 21.8.2002 seeking virtually a relief of permanent injunction against the State and its officials. It must be noted here that in this suit filed on 10.12.2002 Title Suit No. 67/2002 the petitioners were not made parties. Since the petitioners had their own interest over the same suit land they, came out with a separate suit in the same court being T.S.No. 93/2002 in which they had also impleaded the opposite parties, the plaintiff in T.S.No. 67/2002. The petitioners thereafter in order to protect their own rights had sought intervention in T.S.No. 67/2002 which came to be allowed by the court by an order dated 22.1.2004 and thereafter they had also filed written statement on 21.4.2004 in which in paragraph 6 it was categorically mentioned that for the same relief which is subject matter of T.S.No. 67/2002 the petitioners had filed their own independent suit being T.S.No. 93/2002 and the plaint thereof (T.S.No. 93/2002) was made part and parcel of the written statement in T.S.No. 67/2002. 3 The pleadings having been completed in T.S. No. 67/2002, it was the turn of the plaintiff of T.S.No. 67/2002 to file an application seeking stay of the subsequent suit filed by the petitioners being T.S.No. 93/2002. Such application filed on 18.1.2006 had definitely enraged the petitioners and they took their own defensive action by filing an application containing the additional written statement as also an application seeking leave for filing of such additional written statement on 7.6.2006. While this application was pending consideration the court below on 21.5.2007 following the mandate and the principles of section 10 C.P.C. had stayed the suit filed by the petitioners i.e. T.S.No. 93/2002, being subsequent suit covering the same property and between the same parties. It was then and only then that the impugned order came to be passed on 20.8.2007 wherein it has been held that since additional written statement had a tinge and flavour of containing the counter claim the same was not permissible, 4 especially when the issues had already been framed and four witnesses on behalf of the plaintiff had already been examined. As noted above, in the facts of the present case this could not have a cut and dry solution and the prayer of the petitioners could not have been rejected on that ground that the issues were framed on the basis of existing pleadings as also the parties had started leading evidence on such issues. Here was a case where virtually two parties were found to be at logger heads for claiming the property in question. That is how two suits had came to be filed being T.S.No. 67/2002 and 93/2002 before the same court. Therefore, as soon as the petitioners had filed their written statement after intervening in the suit, T.S.No. 67/2002, and had made the plaint of T.S.No. 93/2002 that by itself was a counter claim in terms of Order 8 Rule 6A. Therefore, there was no difficulty for the court to allow additional written statement which virtually only is an expansion of the plaint of T.S. No. 93 of 2002 and is sought to be introduced by way of counter claim. 5 The Court below ought to have allowed the same in view of the fact that an application seeking stay of the suit filed on 18.1.2006 by virtue of which pleadings of T.S.No. 93/2002 could not have been looked into, had necessitated for filing of an additional written statement. The Court below in this context, therefore, was required to look into the object and principles of Order 8 Rule 9, which reads as follows : “9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.” From a bare reading of the aforementioned provisions it would be clear that not only the court has been vested with the power to accept additional written 6 statement but in fact the court can itself ask for a written statement or additional written statement from any of the party. This rule thus invests the Court wide a wide discretion and enables it to accept a written statement even after issues are framed as was held by this Court in the case of Binda Prasad Vs. Union Bank of India reported in AIR 1961 Patna 152 Wide power granted under Order 8 Rule 9, therefore, ought to have been exercised in this case whereas, as noted above, the plea of counter claim was not unknown or a surprise causing prejudice to the opposite parties, the plaintiffs of T.S. No. 67/2002. Learned counsel appearing on behalf of the opposite parties, however, has pointed out that once the additional written statement is now held to be the requirement of the case and has to be taken on record for disposal of T.S.No. 67/2002, the entire clock will have to be put back at least from the date of framing of the issue. He has pointed out that four witnesses had already been examined and 7 therefore, this Court should not exercise its discretion in favour of the petitioners by directing the court below to accept the additional written statement. This submission, however, has been repelled by Mr. Narayan, who would submit that the petitioners were not at fault and in fact they had always expected that both the suits would go together and therefore, there would not be a situation for introducing additional written statement, especially when the original written statement filed by the petitioners was sought to be made brief by enclosing the copy of the plaint of T.S.No. 93/2002 itself. He has also submitted that the petitioners are ready to pay any reasonable amount as may be fixed by this Court for acceptance of their additional written statement. Having given anxious consideration, this Court is of the view that the grievance of the opposite parties, plaintiff in T.S.No. 67/2002, is correct to some extent because even if the petitioners were confident of the pleadings of T.S.No. 8 93/2002 they were still to required to file a self contained written statement in lieu of a very cryptic written statement by choosing to rely on their own plaint of T.S.No. 93/2002. This is so because ultimately the pleadings of T.S.No. 67/2002 has to be looked into for the purposes of deciding the suit and therefore, even if the petitioners had intervened of their own in the said suit and were allowed to be impleaded as a party on 21.2.2004, it was their duty to come with a compact pleadings in the original written statement itself. That, however, should not be defeat the cause of justice and only because the petitioners could not do so earlier, should not disentitle them for ever to put their entire case as has been sought to be done by them by filing the additional written statement. Therefore, having taken the entire facts and circumstances, as noted above, this Court would hold that the impugned order rejecting the additional written statement of the petitioner suffers from an apparent jurisdictional error and 9 accordingly the same is set aside. The Court below is directed to take the additional written statement of the petitioners on record and proceed afresh from the stage of framing of issues but all such exercise shall begin only when the petitioners would pay a sum of Rs. 7500/- to the plaintiff-opposite parties which they must do within a period of one month from the date of receipt/ production of a copy of this order. In the result, this civil revision application is, accordingly, allowed in the ligh t of the aforementioned observations and directions. (Mihir Kumar Jha,J.) Patna High Court, dt. 27th Nov' 2008 AFR/Surendra