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DEEPAK GUPTA, J. –

Defendant No.1 in Civil Suit No. CS-960-2015, titled ‘Ram Chander v. Ishwar Singh and another’, pending before the learned Civil Judge (Junior Division), Gurugram, has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the order dated 06.08.2019 (Annexure P-11), whereby his written statement dated 01.12.2017 was struck off under Order VI Rule 16 read with Section 151 of the Code of Civil Procedure, 1908 (for short, “the CPC”), on an application filed by the plaintiff.

2. Briefly stated, the plaintiff-respondent instituted the aforesaid suit against his two brothers, namely, Ishwar Singh (petitioner herein) and Mahender Singh (since deceased, represented through his legal representatives), seeking partition of the properties detailed in paragraph 3 of the original plaint. The petitioner filed his written statement (Annexure P-2), taking the stand that the joint properties had already been partitioned between the parties pursuant to a written agreement dated 19.09.1990 and that, consequently, each party had become exclusive owner of the properties falling to his share. It was further pleaded that, in the event of the said agreement being denied, the suit would be liable to fail for partial partition, as several other properties, particulars whereof were furnished in paragraph 4 of the preliminary objections, had not been included in the suit.

3. The plaintiff thereafter moved an application under Order VI Rule 17 CPC (Annexure P-3), pleading that the existence of the agreement dated 19.09.1990 had not been within his knowledge and seeking incorporation of several other properties in the plaint for the purpose of partition. The said application was allowed by the learned trial Court vide order dated 09.09.2017 (Annexure P-5), pursuant to which the plaintiff filed the amended plaint (Annexure P-6). In response thereto, the petitioner filed a fresh written statement dated 01.12.2017 (Annexure P-7). The plaintiff filed his replication/ rejoinder thereto (Annexure P-8), whereafter issues were framed and the matter was taken up for the plaintiff's evidence.

4. At that stage, the plaintiff moved an application under Order VI Rule 16 CPC (Annexure P-9), seeking striking out of the written statement dated 01.12.2017. The principal ground was that, instead of confining the amended written statement to the amendments introduced in the plaint, the petitioner had filed an entirely fresh written statement and had allegedly changed the entire defence taken in his earlier written statement. The petitioner contested the application by filing reply (Annexure P-10). The learned trial Court, however, accepted the plaintiff's application and struck off the written statement dated 01.12.2017 vide the impugned order dated 06.08.2019 (Annexure P11).

5. Assailing the impugned order, learned counsel for the petitioner contends that once the plaint was permitted to be amended, the petitioner acquired a corresponding right to file an amended written statement and that such written statement is not necessarily required to be confined mechanically to the precise amendments made in the plaint. It is submitted that a defendant is entitled to reconsider his defence in the amended pleadings, including taking an additional plea or even departing from a stand earlier taken, subject to the Court ultimately considering the effect and evidentiary value of such change at the appropriate stage. It is further contended that no admission made in the earlier written statement was specifically withdrawn so as to cause any prejudice to the plaintiff and, in any event, the mere taking of a plea of limitation could not furnish a ground for striking off the entire written statement.

6. Learned counsel for the respondent-plaintiff, on the other hand, has supported the impugned order and submitted that the petitioner could not have used the occasion of amendment of the plaint to substitute his entire defence and take a stand inconsistent with his earlier pleadings.

7. This Court has considered the rival submissions and examined the record.

8. The controversy essentially turns upon the scope of Order VI Rule 16 CPC and the permissible ambit of an amended written statement filed in response to an amended plaint. Order VI Rule 16 CPC reads as under:

“16. Striking out pleadings.— The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading—

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.”

9. A plain reading of the provision makes it evident that the power to strike out pleadings is not available merely because a pleading contains a defence inconsistent with, or different from, an earlier pleading. The Court must record a finding that the matter sought to be struck out falls within one or more of the specific contingencies contemplated by clauses (a), (b) or (c) of Rule 16. Since striking out a pleading, particularly a written statement, has the effect of seriously prejudicing the right of a party to defend the suit, such power has necessarily to be exercised sparingly, cautiously and upon satisfaction of the statutory requirements.

10. The Hon'ble Supreme Court in Abdul Razak (D) through LRs and others v. Mangesh Rajaram Wagle and others, (2010) 2 SCC 432, has emphasised that, having regard to the serious consequences flowing from striking out pleadings, the power under Order VI Rule 16 CPC must be exercised with care and circumspection.

11. Also important is the legal position concerning the right of a defendant to file an amended written statement after amendment of the plaint. Once the plaint is amended pursuant to an order of the Court, the defendant is ordinarily entitled to file a consequential written statement. This Court in Jia Lal and another v. Savitri Devi and another, 1995 (1) LJR 736, has held that the defendant has a corresponding right to file an amended written statement after the plaint has been amended and that, upon amendment, the original pleadings stand substituted by the amended pleadings.

12. The scope of an amended written statement is also materially wider than that of an amended plaint. In Pritam Singh v. Atma and others, 1993 (2) RRR 507, this Court held that there is no absolute legal bar against withdrawal of an admission made in an earlier written statement, when the defendant gets an opportunity to file a written statement in response to an amended plaint. The effect of such change or withdrawal is a matter, which the trial Court has to consider at the appropriate stage, while adjudicating the suit and appreciating the evidence.

13. Similarly, in Naresh Kumar v. Om Prakash, 1990 (1) RRR 9, this Court held that a written statement filed in response to an amended plaint need not necessarily be restricted only to the portion of the plaint, which has been amended. The defendant can take a different or inconsistent defence in the amended written statement, and his right to alter his defence cannot be curtailed merely on account of the stand taken in the earlier written statement. A similar principle has been recognised by the Madras High Court in Sri Srinivasmurthy Mandiram v. Mrs. Gnanasoundari, AIR 2004 Madras 518.

14. The underlying distinction between an amended plaint and an amended written statement is well recognised. While an amendment of the plaint is generally scrutinised with greater rigour because a plaintiff cannot ordinarily introduce an altogether new and inconsistent cause of action, a defendant is permitted greater latitude in altering or adding to his defence. The reason is that the defendant is not seeking to introduce a new cause of action; he is merely seeking to put forward the grounds on which the plaintiff's claim is sought to be resisted. Of course, such latitude does not mean that every change in defence must necessarily be accepted without consequence. The Court may, depending upon the facts, consider whether the changed stand is permissible, whether it causes prejudice, whether costs are warranted, and what evidentiary value is to be attached to any earlier admission. But such matters do not, by themselves, attract Order VI Rule 16 CPC.

15. Tested on the aforesaid principles, the impugned order cannot be sustained. The learned trial Court has not recorded any finding that the written statement dated 01.12.2017, or any particular averment therein, was unnecessary, scandalous, frivolous or vexatious; nor has it recorded a finding that the pleading was such as would prejudice, embarrass or delay the fair trial of the suit, or that it constituted an abuse of the process of the Court. Thus, none of the statutory parameters prescribed under Order VI Rule 16 CPC has been satisfied.

16. The reasoning adopted by the learned trial Court is essentially that certain preliminary objections taken in the earlier written statement had not been repeated in the subsequent written statement and that a plea of limitation, which had not been taken earlier, had been introduced. Such reasoning, in the considered opinion of this Court, does not furnish a lawful basis for striking off the entire written statement under Order VI Rule 16 CPC. The mere omission of an earlier plea or introduction of an additional plea does not make the subsequent written statement unnecessary, scandalous, frivolous or vexatious, nor does it by itself amount to an abuse of the process of the Court.

17. The fact that the plea of limitation was not taken in the earlier written statement also does not alter the position. A plea of limitation is a plea relating to the maintainability of the claim and, depending upon the nature of the plea and the facts pleaded, may constitute a pure question of law or a mixed question of law and fact. Whether the plea is available to the petitioner, whether it is supported by the pleadings and evidence, and what legal consequence follows therefrom are matters to be adjudicated in accordance with law. The petitioner cannot be deprived of his defence merely because such plea was not incorporated in the earlier written statement.

18. It is also material that the amended written statement had already been taken on record, the plaintiff had filed replication thereto and issues had been framed. Thus, the plaintiff was fully aware of the defence sought to be raised by the petitioner and had an opportunity to meet the same. In these circumstances, striking off the entire written statement at the stage of commencement of evidence, without recording satisfaction as to any of the conditions stipulated in Order VI Rule 16 CPC, was wholly disproportionate to the alleged procedural irregularity.

19. It must, however, be clarified that permitting the petitioner to rely upon the written statement dated 01.12.2017 does not amount to an adjudication upon the correctness of the defence contained therein. If the petitioner has taken a stand inconsistent with his earlier pleadings, or has departed from any admission made earlier, the legal effect thereof shall remain open for consideration by the learned trial Court at the appropriate stage. The plaintiff shall also remain entitled to rely upon the earlier written statement and the admissions, if any, contained therein in accordance with law. Nothing stated herein shall be construed as an expression of opinion on the merits of the rival claims or on the plea of limitation.

20. For the foregoing reasons, the impugned order dated 06.08.2019 (Annexure P-11) is set aside. The written statement dated 01.12.2017 (Annexure P-7), filed by the petitioner in response to the amended plaint, shall be treated as the written statement of defendant No.1. The learned trial Court shall proceed with the suit thereafter in accordance with law, uninfluenced by any observation made herein on the merits of the rival contentions.

21. The petition is accordingly allowed in the aforesaid terms. Disposed of accordingly. Pending application(s), if any, also stand disposed of.

Petition allowed.

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