P.A. JAYALAKSHMI versus H. SARADHA AND ORS.

Citation: [2009] 11 S.C.R. 131 · Decided: 21-07-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

[2009] 11 S.C.R. 131 
P.A. JAYALAKSHMI 
v. 
H. SARADHA AND ORS. 
(Civil Appeal No. 4586 of 2009) 
JULY 21, 2009 
[S.B. SINHA AND DEEPAK VERMA, JJ.] 
Code of Civil Procedure, 1908: 
A 
B 
Or. V/11, r. 9 and Or. VI, r. 17 - Distinction between -
c 
Discussed. 
Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional 
pleadings - Suit for partition - Application filed by defendant-
appellant seeking leave to file additional written statement -
Rejected by Courts below - Justification of - Held: On facts, 
D 
justified - The application was filed at a much belated stage 
-
Statutory limitations brought about by reason of 
amendments in CPC to be kept in mind. 
Respondents filed suit for partition in the year 2004. 
E 
Appellant filed written statement in 2006 and on 1-3-2007, 
filed application purportedly in terms of Or.VIII, r.9 CPC 
seeking leave to file additional written statement with 
• regard to a Will in regard to the suit property, which was 
not mentioned in the written statement. By that time 
F 
examination of one witness was over. The Will was 
purportedly executed in· 1993 and it was urged by the 
appellant that she discovered the existence of Will only 
on 5-2-2007. The said application was dismissed by the 
Trial Court. Revision petition filed by appellant was 
G 
dismissed by the High Court. 
In appeal to this Court, it was contended that the 
Courts below failed to take into consideration that in 
131 
H 
132 
SUPREME COURT REPORTS 
[2009] 11 S.C.R. 
A effect and substance, appellant's application should have 
·~ 
been treated to be one for amendment of written 
statement as envisaged under Order VI, r.17 CPC and not 
one for leave to file additional pleadings as envisaged 
under Or.VIII, r.9 thereof; that the appellant having raised 
B a contention that she discovered the existence of Will 
only on 5-2-2007, even the requirements of the proviso 
appended to Or.VI, r.17 CPC must be held to have been 
satisfied and that by reason of the said application, the 
appellant did not bring about any change in the principal 
c contention raised in her written statement as the said Will 
was sought to be brought on record wherefor requisite 
pleadings were necessary only to support her case that 
the property in question was not a joint family property. 
D 
Dismissing the appeal, the Court 
HELD: 1. With a view to put an end to the practice of 
fili.ng applications for amendments of pleadings belatedly, 
a proviso was added to Order VI Rule 17. CPC. Order VI 
Rule 17 speaks of amendment of pleadings whereas 
E Order VIII Rule 9 CPC provides for subsequent pleadings 
·t 
by a defendant. The distinction between the two 
provisions is evident. Whereas by reas'ln of the former 
unless a contrary intention is expressed by the court, any 
amendment carried out in the pleadings shall relate back 
• 
F to the date of filing original thereof, subsequent pleadings 
stand on different footings. [Para 8] [137-D-H; 138-A] 
2. In the present case, for reasons best known to the 
appellant, she had chosen to file her application seeking 
leave to file additional pleadings. Such a stand might have 
G been taken by her with a view to obviate the bar created 
by reason of the proviso appended to Order VI, Rule 17 
H 
of CPC; The firm stand taken by the appellant both before > 
the Trial Court as also the High Court was that her 
application was under Order VIII, Rule 9 of CPC . At no 
... 
P.A. JAYALAKSHMI v. H. SARADHA AND ORS. 
133 
~ point of time, a contention was raised that she wanted to 
A 
amend her pleadings. [Para 9] [138-8-C] 
3. Ordinarily at such a belated stage, leave for filing 
additional written statement is usually not granted. 
Noticeably one of the plaintiffs was examined on 1.3.2007. 
8 
Despite the fact that the appellant is said to have 
discovered the existence of the Will on or about 5.2.2007, 
t-
no question was put to the said witness with regard to 
the said Will or otherwise. It is only at a later stage that 
the aforementioned application for grant of leave to file 
C 
additional written statement was moved. There cannot be 
any doubt or dispute that the courts should be liberal in 
allowing applications for leave to amend pleadings but it 
is also well settled that the courts must bear in mind the 
statutory limitations brought about by reason of the Code 
of Civil Procedure (Amendment) Acts; the proviso D 
appended to Order VI Rule 17 being one of them. [Para 
10] [138-D-F] 
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