ABDUL RAZAK (D) THROUGH LRS. AND ORS.versusMANGESH RAJARAM WAGLE AND ORS.

                    [2010] 1 S.C.R. 899


      ABDUL RAZAK (D) THROUGH LRS. AND ORS.                     A
                              v.
         MANGESH RAJARAM WAGLE AND ORS.
             (Civil Appeal No. 55 of 2010)

                     JANUARY 07, 2010
                                                                B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

     Code of Civil Procedure, 1908:

      Or. 6, r. 16 - Additional written statement filed by c
appellants, the LRs of deceased defendant - Taken on record
without any objection from plaintiffs-respondents -
Respondents also did not object to framing of additional
issues and led evidence in support of their case - Belated
application filed by respondents for striking out additional D
written statement - Effect of - Held: The application of
respondents was frivolous and not maintainable -
Respondents filed application for striking out the additional
written statement after a long time gap without any explanation
- The application was filed by respondents after almost one E
year of completion of their evidence - In absence of any
contrary evidence, it can be reasonably and legitimately
presumed that respondents must have produced their
evidence keeping in view the pleadings contained in the
additional written statement.
                                                                F
      Or. 6, r. 16 - Power of Court to strike out pleadings - When
exercisable - Held: Such power can be exercised in either of
the three eventualities i.e., where the pleadings are considered
by the court unnecessary, scandalous, frivolous or vexatious;
or where the court is satisfied that the pleadin'gs tend to G
prejudice, embarrass or delay the fair trial of the suit or which
is otherwise considered as an abuse of the court - Since
striking out pleadings has serious adverse impact on the

                             899                                H
    900      SUPREME COURT REPORTS                 [201 O] 1 S.C.R.


A rights of the concerned party, the power to do so has to be
    exercised with great care and circumspection.

          Or.6, r.16 and Or.22, r.4 - Additional written statement
    fifed by appellants, after their impleadment as LRs of
    deceased defendant - Plea of plaintiffs-respondents that the
8   pleadings contained in the additional written statement were
    inconsistent with the defence set up by the predecessor-in-
    interest of appellants in the original written statement and the
    trial Court was duty bound to discard the same in view of
    Or.22, r.4 - Tenability of - Held: Not tenable :- Claim made
C   by the appellants was in no way inconsistent with or
    derogatory to the defence set up by their predecessor-in-
    interest - Once the additional written statement filed by
    appellants was taken on record without any objection by
    plaintiffs-respondents, who also led their evidence keeping in
D   view the pleadings of the additional written statement, the High .
    Court was not at all justified in allowing the application filed
    for striking off the additional written statement and that too
    without even adverting to Or. 6, r. 16 and without considering
    whether respondents were able to make out a case for
E   exercise of power by the Court under that provision.

        Constitution of India, 1950 - Articles 226 and 227 -
  Exercise of power under - Limitations of certiorari jurisdiction
  and supervisory jurisdiction - On facts, while deciding the writ
F petition filed by respondents and granting relief to them, the
  High Court erroneously did not keep in mind the guiding
  principles laid down for exercise of power under Articles ·226
  or 227 of the Constitution and adjudicated upon the writ
  petition, as if it was exercising appellate jurisdiction.

G        High Courts - Exercise of jurisdiction - High Courts to
    refrain from deciding writ petitions as if adjudicating appeals
    against orders of lower courts or other judicial/quasi judicial
    bodies/authorities.

H         Respondent nos.1 and 2 filed suit for declaration that
   ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.              901
          MANGESH RAJARAM WAGLE

 they were lawful tenants of the suit premises, and A
 alternatively, for recovery of possession of the suit
 premises, which they alleged was forcibly occupied by
 respondent no.3. The premises in question is situated in
 the State of Goa.
                                                             B
      Respondent no.3-defendant not only denied the
 averments contained in the plaint that he had illegally
 taken possession of the suit premises, but also pleaded
 that he was doing business of distribution of liquor in the
 suit premises on the basis of permission accorded by 'A', C
 the other defendant, and further that the competent
 authority had granted him excise licence after being
 satisfied that the suit premises were suitable for doing
 business in liquor.

        'A' filed a separate written statement stating that the D
   predecessor-in-interest of respondent nos.1 and 2 had
  voluntarily surrendered the suit premises and thereafter,
   respondent no.3 occupied the same for conducting the
   business of distribution of liquor.
                                                                E
        'A' died during the pendency of the suit. Thereupon,
  respondent nos.1 and 2 filed application for impleading
  A's widow (appellant no.1), son (appellant no.2) and three
  daughters (appellant nos. 3, 4 and 6) and two son-in-laws
  (appellant nos. 5 and 7) in place of 'A'. Appellant nos.3, 4 F
  and 6 objected to the impleadment of appellant nos. 5 and
· 7, i.e. the son-in-laws on the ground that they were non-
  Goans and were not governed by personal law relating
  to properties in Goa. They also objected~ to the
  impleadment of appellant nos.1 and 3, i.e. the widow and
  son, on the ground that they themselves had become G
  owners of the suit premises by virtue of the orders
  passed in the inventory proceedings initiated after the
  death of their grandparents. The trial court overruled all
 the objections raised by appellant nos. 3, 4 and 6 and
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    902      SUPREME COURT REPORTS               [2010] 1 S.C.R.


A     allowed the application of respondent nos. 1 and 2 by
      observing that joining of the widow, son and son-in-laws
      of the deceased will not prejudice the daughters i.e. the
    · appellant nos. 3, 4 and 6 and they will be entitled to take
      defence suitable to their plea.
B
          In furtherance of the observation made by the trial
     court, the appellants filed additional written statement, the
     sum and substance of which was that appellant nos.3, 4
     and 6 had become owners of the suit property by virtue
C    of the orders passed in the earlier inventory proceedings
     after the death of their grandparents. After filing of the
     additional written statement, the trial Court framed
     additional issues. Respondent nos.1 and 2 did not object
     to the taking on record of the additional written statement
     filed by the appellants or framing of the additional issues
D    and led evidence. Thereafter, the appellants produced
     their evidence.

          However, when the case was fixed for cross-
     examination of appellant no.3, respondent nos.1 and 2
E    filed application for striking off the additional written
     statement by asserting that the LRs of 'A' did not have
     right under the CPC to file such written statement and,
     in any case, they cannot be allowed to raise new plea
     about their title to the suit premises. Respondent nos.1
F    and 2 further pleaded that the additional written statement
     was liable to be struck off as before filing the same, the
     appellants did not seek leave of the court.

         In their reply, the appellants pleaded that the
     additional written statement was filed with a view to bring
G    on record the facts relating to the earlier inventory
     proceedings and the same cannot be struck off because
     the applicants had failed to make out a case for exercise
     of power by the court under Order VI, Rule 16 CPC.

H
  ABDUL RAZAK (0) THROUGH LRS. AND ORS. v.               903
         MANGESH RAJARAM WAGLE

    The trial Court dismissed the application of A
respondent Nos. 1 and 2 by observing that leave of the
Court will be presumed to have been granted because
after the additional written statement was filed,
respondent Nos. 1 and 2 had not objected to the same.
As regards their plea that new or inconsistent case was B
sought to be set up by the appellants, the trial Court
observed that this point can be considered at the time of
deciding the case on merits. The trial Court then referred
to Order VI Rule 16 and held that respondent Nos.1 and
2 had not been able to make out a case for striking off c
the additional written statement.

     Respondent nos.1 and 2 filed writ petition, which the
High Court allowed holding that the LRs of 'A' were not
entitled to take a plea derogatory to the plea already
taken; and that the trial Court was not justified in             D
dismissing the application filed by respondent nos. 1 and
2 on the ground of delay, which could have been
compensated by imposing cost.

     In appeal to this Court, the questions which arose for      E
consideration were - (i) What is the effect of delay in filing
the application by respondent nos.1 and 2 for striking off
the additional written statement (ii) Whether the High
Court could pass an order for striking off the additional
written statement despite the fact that respondent nos.1         F
and 2 failed to make out a case for exercise of power by
the court under Order VI Rule 16 CPC and (iii) Whether
the High Court was justified in setting aside the order of
the trial Court without being satisfied that the same was
vitiated by an error of jurisdiction or an error of law          G
apparent on the face of the record and that such error
resulted in substantial failure of justice.

    Allowing the appeal, the Court

    HELD:1. The additional written statement was filed           H
    904     SUPREME COURT REPORTS                 [2010] 1 S.C.R.

A by the appellants and taken on record without any
     objection from respondent nos.1 and 2, who did not even
     seek leave of the court to file further pleadings in the light
     of the additional written statement. Also, it is clear that
     respondent nos.1 and 2 led evidence in support of their
B case and completed the same. In the absence of any
     contrary evidence, it can be reasonably and legitimately
     presumed that respondent nos.1 and 2 must have
     produced their evid~nce keeping in view the pleadings
    contained in the additional written statement. They filed
c application for striking out the additional written
     statement after a long time gap of three years and six
    months without explaining as to why they did not object
    to the taking on record of the additional written statement
    and framing of additional issues when it was filed and
D why they chose to lead evidence knowing fully well that
   ,after their impleadment as legal representatives of 'A',
    appellant Nos. 3, 4 and 6 had pleaded that they had
    become owners of the property by virtue of the orders
    passed in the inventory proceedings. The High Court
    casually brushed aside and rejected the plea of the
E appellants that the application filed by respondent nos.1
    and 2 for striking off the additional written statement was
    highly belated and no explanation worth the name had
    been offered for the same by observing that the trial Court
    could have compensated them by imposing cost. The
F High Court should have seriously examined the issue of
    delay in the backdrop of the facts that respondent Nos.
    1 and 2 did not object to the taking on record the
    additional written statement or framing of additional
  . issues and led their evidence and further that the
G application was filed after almost one year of completion
    of their evidence. The observation made by the High
    Court that the proceedings of the suit will be delayed if
    the legal representatives of 'A' are allowed to take the
    plea based on their title is neither here nor there. It is true
H
  ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                905
         MANGESH RAJARAM WAGLE

that the suit filed by respondent Nos. 1 and 2 is pending A
for last about 17 years, but there is nothing on record to
show that the appellants or their predecessors are
responsible for the delay. The death of 'A' was not a
predictable event, the happening of which could be
averted by the parties or the court. In any case, the B
appellants cannot be blamed for the delay, if any, in the
trial of the case. As a matter of fact, respondent Nos. 1
and 2 have delayed the proceedings for over two years
by filing frivolous application for striking off the additional
written statement. [Para 14) [914-G-H; 915-A-H; 916-A]          c
      2.1. A reading of the plain language of Order VI Rule
 16 CPC makes it clear that the court's power to strike out
any pleading at any stage of the proceedings can be
exercised in either of the three eventualities i.e., where
the pleadings are considered by the court unnecessary, D
scandalous, frivolous or vexatious; or where the court is
satisfied that the pleadings tend to prejudice, embarrass
or delay the fair trial of the suit or which is otherwise
considered as an abuse of the court. [Para 16) [916-E-F]
                                                                  E
      2.2. Normally, a court cannot direct or dictate the
parties as to what should be their pleading and how they
should prepare their pleadings. If the parties do not
violate any statutory provision, they have the freedom to
make appropriate averments and raise arguable issues. F
The court can strike off the pleadings only if it is satisfied
that the same are unnecessary, scandalous, frivolous or
vexatious or tend to prejudice, embarrass or delay the fair
trial of the suit or the court is satisfied that suit is an abuse
of the process of the court. Since striking off pleadings G
has serious adverse impact on the rights of the
concerned party, the power to do so has to be exercised
with great care and circumspection. [Para 17] [916-G-H;
917-A]
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    906      SUPREME COURT REPORTS              [2010] 1 S.C.R.


A       2.3; In the present case, the trial Court did make a
  reference to the provisions of Order VI Rule 16 and held
  that the application made by respondent ~os. 1 and 2
  does not fall in either clauses of Rule 16. The High Court
  did not even bother to notice Order VI Rule 16 what to
B say of considering its applicability to the pleadings
  contained in the additional written statement and granted
  the prayer of respondent Nos. 1 and 2 by assuming that
  the plea raised by the appellants was inconsistent with
  the defence set up by their predecessor-in-interest. The
c High Court did not have the jurisdiction to direct striking
  off the additional written statement without being satisfied
  that respondent Nos. 1 and 2 were able to make out a
  case for exercise of power by the court under either of
  three clauses of Order VI Rule 16 CPC. [Para 19] [917-A;
D 918-A-C]
          Sathi Vijay Kumar v. Tota Singh and others, (2006) 13
    sec 353, relied on.
        Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC
E   487; K.K.Modi v. K.N. Modi, (1998) 3 SCC 573 and Union
    Bank of India v. Naresh Kumar, (1996) 6 SCC 660, referred
    to.
                                                                  ..
          Knowles v. Roberts, (1888) 38 Ch D 263, referred to.

F      3.1. Although, from the record produced before this
  Court, it is not clear whether respondent Nos. 1 and 2 had
  filed writ petition under Article 226 of the Constitution or
  they invoked supervisory jurisdiction of the High Court
  under Article 227 of the Constitution, but a reading of the
G impugned order does not leave any manner of doubt that
  while granting relief to respondent Nos. 1 and 2, the High
  Court did not keep in mind the guiding principles laid
  down by this Court for exercise of power under Articles
  226 or 227 of the Constitution. It seems that the High
H Court decided the matter by assuming that it was hearing
  ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.             907
         MANGESH RAJARAM WAGLE

an appeal against the order of the trial Court. If this was A
not so, the High Court was duty bound to first consider
whether it was called upon to exercise power under
Article 226 of the Constitution or under Article 227 thereof.
If respondent Nos. 1 and 2 had invoked the High Court's
jurisdiction under Article 226, then the High Court ought B
to have considered whether the trial Court committed a
jurisdictional error by refusing to strike off the additional
written statement filed by the appellants or it was a case
of failure on the part of the trial Court to exercise the
power vested in it under Order VI Rule 16 CPC or the c
order under challenge was vitiated by an error of law
apparent on the face of the record or there was violation
of the rules of natural justice. In either case, the High
Court was also required to consider whether there was
substantial failure of justice or manifest injustice was D
caused to respondent Nos. 1 and 2 on account of the trial
Court's refusal to strike off the additional written
statement. [Para 20] [918-E-H; 919-A-C]

     3.2. While deciding the writ petition filed by
respondent Nos. 1 and 2, the High Court did not keep in E
mind the principles laid down by this Court and decided
the same, as if it was exercising appellate jurisdiction of
the High Court. It is hoped that in future the High Courts
would keep in view the limitations of certiorari jurisdiction/
supervisory jurisdiction and refrain from deciding the writ F
petitions filed under Article 226 or petitions/applications
filed under Article 227 of the Constitution as if they are
adjudicating appeals filed against the orders of the lower
courts or other judicial/quasi judicial bodies/authorities.
[Para 21] [922-A-D]                                            G

     3.3. The argument of respondent nos.1 and 2 that the
pleadings contained in the additional written statement
filed by appellants were inconsistent with and beyond the
scope of the defence set up by 'A' in the original written
statement and the trial Court was duty bound to discard H
    908    SUPREME COURT REPORTS              [2010] 1 S.C.R.


A the same in view of the provision contained in Order 22
  Rule 4 CPC is meritless and deserves to be rejected. In
  the plaint filed by them, respondent nos.1 and 2 did not
  make a mention of the inventory proceedings held after
  the death of the appellants' grandparents. There is
B nothing in the written statement of 'A' from which it can
  be inferred that he claimed ownership over the suit
  property. However, after the appellants were brought on ·
  record as legal re rresentatives of late 'A', they filed
  additional written statement incorporating therein the plea
c that the suit property had become subject matter of
  inventory proceedings and tile same was allotted to the
  daughters of 'A' i.e. ai-- ellant nos.3, 4 and 6. According
  to the appellants, 'A' was looking after the suit property
  because at the time of death of his parents, appellant
0 Nos. 3, 4 and 6 were minor. Therefore, it cannot be said
  that the plea raised by the .. ppellants is inconsistent with
  the averments contained in the original written statement
  by 'A'. The claim made by the appellants is in no way
  inconsistent with or derogatory to the defence set up by
E 'A'. In any case, once the additional written statement
  filed by the appellants was taken on record without any
  objection by respondent nos. 1 and 2, who also led their
  evidence keeping in view the pleadings of the additional
  written statement, the High Court was not at all justified
  in allowing the application filed for striking off the
F additional written statement and that too without even
  adverting to Order VI, Rule 16 CPC and considering
  whether respondent nos. 1 and 2 were able to make out
  a case for exercise of power by the Court under that
  provision. [Paras 22 and 26] [922-E-H; 923-A-D; 926-F-H;
G 927-A]

         Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477;
    Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 and
    J.C. Chatterjee v. Sri Kishan (1972) 2 SCC 461, relied on.
H
  ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                909
         MANGESH RAJARAM WAGLE
    Bal Kishan v. Om Parkash (1986) 4 SCC 155 and                 A
Vidyawati v. Man Mohan (1995) 5 SCC 431, distinguished.

                     Case Law Reference:

     (2006) 13 sec 353           relied on           Para 18
                                                                  B
     (1982) 3 sec 487            referred to         Para 18

     (1998) 3 sec 573            referred to         Para 18

     (1996) 6 sec 660            referred to         Para 18

     AIR 1964 SC 477             relied on           Para 20      c
     (2003) 6 sec 675            relied on           Para 20

     (1972) 2 sgc 461            relied on           Para 22

     (1986) 4 sec 155            distinguished       Para 22      D
                                                          -
     (1995) 5 sec 431            distinguished       Para 22

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 55
of 2010.
                                                                  E
    From the Judgment & Order dated 1.2.2008 of the High
Court of Bombay at Goa in Writ Petition No. 58 of 2008.

    A. Sharan, Anis Suhrawardy, Shamama Anis, S. Mehdi
Imam, Tabrez Ahmed for the Appellants.
                                                                  F
    Devatatt Kamat, Priyanka Telang, Rauf Rahim, Dinesh
Kumar Garg, Abhishek Garg, Dhanjayan Garg for the
Respondents.

    The Judgment of the Court was delivered by
                                                                  G
    G.S. SINGHVI, J. 1. Leave granted.

    2. The appellants are aggrieved by the order of the learned
Single Judge of the Bombay High Court, Goa Bench whereby
he allowed the writ petition filed by respondent Nos. 1 and 2     H
    910     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   and granted their prayer for striking off the additional written
    statement filed by the appellants after their impleadment as
    legal representatives of defendant No.2 - Abdul Razak.

        3. Respondent Nos. 1 and 2 filed suit in the Court of Civil
  Judge (Senior Division), Panaji (hereinafter described as 'the
8
  trial Court') for declaring them as lawful tenants of suit premises
  and also for restraining the defendants - Suresh D. Naik
  (respondent No.3 herein) and Abdul Razak, who died during
  the pendency of the suit and is being represented by his legal
C representatives (appellants herein) to remove the lock allegedly
  put by respondent No.3 on the suit premises along with
  materials dumped there. An alternative prayer made by
  respondent Nos. 1 and 2 was for recovery of possession of suit
  premises in case it was held that they had already been
  dispossessed. The substance of the case set up by respondent
D Nos. 1 and 2 before the trial Court is that the suit premises were
  let out to their predecessor Shri Rajaram D. Wagle in 1951 by
  one Jussab Abdul Karim at a monthly rent of Rs.15/- which was
  subsequently increased to Rs.25/-; that the owner-cum-landlord
  sold the premises to Abdul Kadar Haji Jaffar (grandfather of
E appellant Nos.2, 3, 4 and 6); that Rajaram D. Wagle died on
  29.4.1981 and after his death they have been using the suit
  premises for parking their cars; that on 5.1.1992, respondent
  No.3 broke open the lock of the suit premises and dumped his
  goods i.e., boxes of liquor bottles, but the same were removed
F by the police on a complaint made by respondent No.1 in that
  regard; that on 8.1.1992, respondent No. 3 again broke open
  the lock and forcibly occupied the suit premises and this time
  the police did not act on the complaint made by them.

       4. In his written statement, respondent No.3 not only denied
G the averments contained in the plaint that he had illegally taken
  possession of the suit premises after breaking open the locks
  put by respondent Nos. 1 and 2, but also pleaded that after
  being forced to leave Kuwait in the wake of war, he came to
  India and is doing business of distribution of liquor in the suit
H
  ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                 911
  MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

premises on the basis of permission accorded by defendant A
No.2 -Abdul Razak, who was a family friend. Respondent No.3
further pleaded that the competent authority granted him excise
licence after being satisfied that the suit premises were suitable
for doing business in liquor.
                                                                  B
     5. Abdul Razak (predecessor of the appellants) filed a
separate written statement. He largely denied the averments
contained in the plaint and pleaded that much before his death,
Shri Rajaram D. Wagle had voluntarily surrendered the suit
premises and thereafter, respondent No.3 was allowed to
occupy the same for conducting business of distribution of C
liquor.

      6. Abdul Razak died during the pendency of the suit.
Thereupon, respondent Nos. 1 and 2 filed an application for
impleading his widow (appellant No.1), son and three daughters D
(appellant Nos. 2, 3 4 and 6) and two son-in-laws (appellant
Nos. 5 and 7) in place of the deceased. Appellant Nos. 3, 4
and 6 objected to the impleadment of the son-in-laws by stating
that they are non-Goans and are not governed by personal law
relating to properties in Goa. They also objected to the E
impleadment of appellant Nos. 1 and 3 i.e., the widow and son
of the deceased on the ground that the suit premises had been
allotted to them in the inventory proceedings.

      7. By order dated 10.12.2003, the learned trial Court
overruled all the objections raised by appellant Nos. 3, 4. and   F
6 and allowed the application of respondent Nos. 1 and 2 by
observing that joining of the widow, son and son-in-laws of the
deceased will not prejudice the daughters and they will be
entitled to take defence suitable to their plea.       ·
                                                                  G
      8. In furtherance of the observation made by the trial Court
in the aforementioned order, the appellants filed additional
written statement dated 3.3.2004, the sum and substance of
which is that in the inventory proceedings No.80/1989/A held
in the Court of Civil Judge (Senior Division) at Panaji after the H
    912      SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   death of Abdul Kadar Haji Jaffar and his wife, the suit property
    was allotted to their grand-daughters (appellant Nos.3, 4 and
    6) because other heirs did not object to this. The appellants
    pleaded that in the meeting held on 10.4.1990, members of the
    Family Council unanimously agreed for allotment of the
B   properties and this was approved by the Court vide order dated
    26.9.1990. A reference was also made to Special Civil Suit No.
    89/99/B filed by appellant Nos. 3, 4 and 6 in the trial Court for
    grant of permanent injunction on the ground that respondent
    Nos. 1 and 2 had filed Execution Application No.15/98/A for
C   being put in possession of the suit premises in execution of
    order dated 17.4.1997 passed in an application for temporary
    and mandatory injunction. According to the appellants, the trial
    Court allowed the execution application and the appeal and
    special leave petition filed by them were dismissed by the High
    Court and this Court respectively. In the additional written
0
    statement, it was also averred that son-in-laws of late Abdul
    Razak have no right, title or interest in the suit property and,
    therefore, they cannot be treated as his legal representatives.
    The impleadment of appellant No.2 was also questioned on the
    premise that he has no right in the suit property.
E
        9. After filing of the additional written statement, the trial
    Court framed the following additional issues:

          1. Whether the plaintiffs prove that defendants illegally
F         damaged and destroyed the two ramps existing adjacent
          to the entrance of the suit premises?

          2. Whether the plaintiffs prove that the suit filed by them
          for declaration of tenancy right is maintainable for want of
          the owners of the suit premises?
G
          3. Whether the plaintiffs prove that Sajeeda Razak,
          Matheen I Saint, Mohammad Arif Razak Ajaz Ahmed are
          legal representatives of deceased defendant No.2
          impleaded in the suit as defendants 2(i), 2(ii), 2(v) and
H         2(vii) respectively.
   ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                 913
   MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

     What relief? What order?                                     A

       10. Respondent Nos. 1 and 2 did not object to the taking
 on record of the additional written statement filed by the
 appellants or framing of the additional issues and led evidence,
 the recording of which was completed during 2006. Thereafter, B
 the appellants produced their evidence. When the case was
 fixed for cross-examination of appellant No.3, who is one of the
 witnesses cited by the appellants, respondent Nos. 1 and 2 filed
 application dated 9.10.2007 for striking off the additional written
 statement by asserting that the legal representatives of the C
 deceased defendant No.2 do not have right under the Code of
 Civil Procedure (CPC) to file such written statement and, in any
 case, they cannot be allowed to raise new plea about their title
to the suit premises. Respondent Nos. 1 and 2 further pleaded
that the additional written statement is liable to be struck off
because before filing the same, the appellants did not seek D
leave of the court. In their reply, the appellants pleaded that the
additional written statement was filed with a view to bring on
record the facts relating to the inventory proceedings and the
same cannot be struck off because the applicants have failed
to make out a case for exercise of power by the court under E
Order VI Rule 16 CPC.

      11. The trial Court dismissed the application of respondent
 Nos. 1 and 2 by observing that leave of the Court will be
presumed to have been granted because the additional written F
statement was filed on 3.3.2004 and respondent Nos. 1 and 2
had not objected to the same. As regards their plea that new
or inconsistent case was sought to be set up by the appellants,
the trial Court observed that this point can be considered at the
time of deciding the case on merits. The trial Court then referred G
to Order VI Rule 16 and held that respondent Nos. 1 and 2 have
not been able to make out a case for striking off the additional
written statement.

      12. Respondent Nos. 1 and 2 challenged the order of the
trial Court in W.P. No. 58/2008. By the impugned order, the       H
    914         SUPREME COURT REPORTS                (2010) 1 S.C.R.


A   learned Single Judge allowed the writ petition and held that the .
    legal representatives of deceased defendant No.2 could have
    taken a plea which was appropriate to their character as legal
    representatives, but they were not entitled to take a plea
    derogatory to the plea already taken. The learned Single Judge
B   further held that the trial Court was not justified in dismissing
    the application on the ground of delay, which could have been
    compensated by imposing cost.

        13. We have heard learned counsel for the parties. Three
C   questions which merit consideration by this Court are -

          (i)     What is the effect of delay in filing the application
                  by respondent Nos. 1 and 2 for striking off the
                  additional written statement?

D         (ii)    Whether the High Court could pass an order for
                  striking off the additional written statement despite
                  the fact that respondent Nos. 1 and 2 failed to make
                  out a case for exercise of power by the court under
                  Order VI Rule 16 CPC?
E         (iii)   Whether the High Court was justified in setting
                  aside the order of the trial Court without being
                  satisfied that the same was vitiated by an error of
                  jurisdiction or an error of law apparent on the face
                  of the record and that such error resulted in
F                 substantial failure of justice?

    Re: (i):

         14. Undisputedly, the additional written statement was filed
    on 3.3.2004 and the same was taken on record without any
G   objection from respondent Nos. 1 and 2, who did not even seek
    leave of the court to file further pleadings in the light of the
    additional written statement. Although, the parties have not
    furnished details of the proceedings of the case for next about'
    two years, this much is clear that respondent Nos.1 and 2 led
H   evidence in support of their case and completed the same in
  ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                     915
  MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

 2006. In the absence of any contrary evidence, it can be              A
 reasonably and legitimately presumed that respondent Nos. 1
 and 2 must have produced their evidence keeping in view the
 pleadings contained in the additional written statement. They
 filed application for striking out the additional written statement
 after a long time gap of three years and six months without           B
 explaining as to why they, did not object to the taking on record
of the additional written statement and framing of additional
 issues in 2004 and why they chose to lead evidence knowing
fully well that after their impleadment as legal representatives
 of Abdul Razak, appellant Nos. 3, 4 and 6 had pleaded that            c
they had become owners of the property by virtue of the orders
 passed in the inventory proceedings. The learned Single Judge
 casually brushed aside and rejected the plea of the appellants
that the application filed by respondent Nos. 1 and 2 for striking
off the additional written statement was highly belated and no         D
explanation worth the name had b.een offered for the same by
observing that the trial Court could have compensated them by
 imposing cost. In our view, the learned Single Judge should
have seriously examined the issue of delay in the backdrop of
the facts that respondent Nos.· 1 and 2 did not object to the
taking on record the additional written statement or framing of        E
additional issues and led their evidence and further that the
application was filed after almost one year of completion of their
evidence. The observation made by the learned Single Judge
that the proceedings of the suit will be delayed if the legal
representatives of the deceased defendant are allowed to take          F
the plea based on their title is neither here nor there. It is true
that the suit filed by respondent Nos. 1 and 2 is pending for
last about .17 years, but there is nothing on record to show that
the appellants or their predecessors are responsible for the
delay. The death of Abdul Razak was not a predictable event,           G
the happening of which could be averted by the parties or the
court. In any case, the appellants cannot be blamed for the
delay, if any, in the trial of the case. As a matter of fact,
respondent Nos. 1 and 2 have delayed the proceedings for over
two years by filing frivolous application for striking off the         H
    916         SUPREME COURT REPORTS                 [2010) 1 S.C.R.


A   additional written statement which, as mentioned above, was
    taken on record in March, 2004.

    Re: (ii):

          15. Order VI Rule 16 CPC which empowers the Court to
B   strike out the pleadings reads thus:

          "Striking out pleadings. - The Court may at any stage of
          the proceedings order to be struck out or amended any
          matter in any pleading-
c         (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
D
          (c) which is otherwise an abuse of the process of the court."

          16. A reading of the plain language of the above
    reproduced provisions makes it clear that the court's power to
    strike out any pleading at any stage of the proceedings can be
E   exercised in either of the three eventualities i.e., where the
    pleadings are considered by the court unnecessary,
    scandalous, frivolous or vexatious; or where the court is satisfied
    that the pleadings tend to prejudice, embarrass or delay the fair
    trial of the suit or which is otherwise considered as an abuse
F   of the court.

         17. Normally, a court cannot direct or dictate the parties
    as to what should be their pleading and how they should
    prepare their pleadings. If the parties do not violate any statutory
G   provision, they have the freedom to make appropriate
    averments and raise arguable issues. The court can strike off
    the pleadings only if it is satisfied that the same are
    unnecessary, scandalous, frivolous or vexatious or tend to
    prejudice, embarrass or delay the fair trial of the suit or the court
H   is satisfied that suit is an abuse of the process of the court.
   ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                     917
   MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]
Since the striking eff pleadings has serious adverse impact on         A
the rights of the concerned party, the power to do so has to be
exercised with great care and circumspection. In Knowles v.
Roberts (1888) 38 Ch D, 263, Boven, L.J. Observed:

      "It seems to me that the rule that the Court is not to dictate   B
      to parties how they should frame their case, is one that
      ought always to be preserved sacred. But that rule is, of
      course, subject to this modification and limitation, that the
      parties must not offend against the rules of pleading which
      have been laid down by the law; and if a party introduces        C
      a pleading which is unnecessary, and it tends to prejudice,
      embarrass and delay the trial of the action, it then
      becomes a pleading which is beyond his right. It is a
      recognized principle that a defendant may claim ex debito
     justitiae to have the plaintiff's claim presented in an
     intelligible form, so that he may not be embarrassed in           D
     meeting it; and the Court ought to be strict even to severity
     in taking care to prevent pleadings from degenerating into
     the old oppressive pleadings of the Court of Chancery."

      18. The above reproduced observations have been                  E
quoted with approval in Sathi Vijay Kumar v. Tota Singh and
others (2006) 13 sec 353. In that case, the order passed by
the High Court deleting paragraphs 11, 12 and 13(a) from the
election petition filed by the appellant was questioned before
this Court on the ground that the case does not fall within the        F
ambit of Order VI Rule 16. This Court first held that the
provisions of Order VI Rule. 16 CPC are applicable to election
petitions. The Court then referred to the earlier judgments in
Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487,
K.K. Modi v. K.N. Modi (1998) 3 SCC 573, Union Bank of                 G
India v. Naresh Kumar (1996) 6 SCC 660 and held that the
power to strike out pleading is extraordinary in nature and must
be exercised by the Court sparingly and with extreme care,
caution and circumspection.

    19. In this case, the learned trial Court did make a               H
    918      SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A reference to the provisions of Order VI Rule 16 and held that
  the application made by the plaintiffs (respondent Nos. 1 and
  2 herein) does not fall in either clauses of Rule 16. The learned
  Single Judge of the High Court did not even bother to notice
  Order VI Rule 16 what to say of considering its applicability to
B the pleadings contained in the additional written statement and
  granted the prayer of respondent Nos. 1 and 2 by assuming
  that the plea raised by the appellants was inconsistent with the
  defence set up by their predecessor-in-interest. In our opinion,
  the learned Single Judge did not have the jurisdiction to direct
c striking off the additional written statement without being
  satisfied that respondent Nos. 1 and 2 were able to make out
  a case for exercise of power by the court under either of three
  clauses of Order VI Rule 16 CPC.

    Re: (iii) :
D
        20. Although, from the record produced before this Court
  it is not clear whether respondent Nos. 1 and 2 had filed writ
  petition under Article 226 of the Constitution of India or they had
  invoked supervisory jurisdiction of the High Court under Article
E 227 of the Constitution, but a reading of the impugned order
  does not leave any manner of doubt that while granting relief
  to respondent Nos. 1 and 2, the learned Single Judge did not
  keep in mind the guiding principles laid down by this Court for
  exercise of power under Articles 226 or 227 of the Constitution.
F It seems to us that the learned Single Judge decided the matter
  by assuming that he was hearing an appeal against the order
  of the trial Court. If this was not so, the learned Single Judge
  was duty bound to first consider whether he was called upon
  to exercise power under Article 226 of the Constitution of India
G or under Article 227 thereof. If respondent Nos. 1 and 2 had
  invoked the High Court's jurisdiction under Article 226, then the
  learned Single Judge ought to have considered whether the trial
  Court committed a jurisdictional error by refusing to strike off
  the additional written statement filed by the appellants or it was
  a case of failure on the part of the trial Court to exercise the
H
   ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                    919
   MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

· power vested in it under Order VI Rule 16 CPC or the order A
   under challenge was vitiated by an error of law apparent on the
  face of the record or there was violation of the rules of natural
  justice. In either case,. the. learned Single Judge was also
  required to considerwhether there has been substantial failure
  of justice ormanifestinjustice has been caused to respondent B
  Nos. 1 and 2 on account of the trial Co.urt's refusal to strike off
  the additional written statement. These are the parameters laid
  down by this Court in Syed Yakoob v. K.S. Radhakrishnan AIR
   1964 SC477, If the petition filed by respondent Nos. 1 and 2
  was under Article 227 of the Constitution of India, then the         c
  learned Single Judge should have taken note of the often
  quoted judgment in Surya Dev Raiv. Ram Chander Rai (2003)
  6 SCC 675, in which a two-Judge Bench, after threadbare
  analysis of Articles 226 or 227 of the Constitution and
  considering large number of judicial precedents on the subject, D
  recorded the following conclusions: ·

    . "(1) Amendmentby Act 46 of 1999 with effect from 1-7-
       2002 in Section 115 of the Code of Civil Procedure cannot
       and does not affect in. any manner the jl.lrisdiction of the
     . High Court under Articles 226 and 227 of the Constitution.      E

     (2) Interlocutory orders, passed by the courts subordinate
     to the High Court, against which remedy of revision has
     been excluded by CPC Amendment Act 46 of 1999 are
     nevertheless open to challenge in, and continue to be             F
     subject to, certiorari and supervisory jurisdiction of the High
     Court .

    . (3) Certiorari, under Article 226 of the Constitution, is
      issued for correcting gross errors of jurisdiction i.e. when
      a subordinate court is found to have acted (i) 'withqut G
      jurisdiction -by assuming jurisdiction where there exists
      none, or(ii) in excess of its jurisdiction - by overstepping
      or crossing the limits of jurisdiction, or (iii) acting in flagrant
      disregard of law or the rules of procedure or acting in
      violation of principles of natural justice where there is no· H
    920       SUPREME COURT REPORTS                       [2010] 1 S.C.R.


A         procedure specified, and thereby occasioning failure of
          justice.

          (4) Supervisory jurisdiction under Article 227 of the
          Constitution is exercised for keeping the subordinate
          courts within the bounds of their jurisdiction. When a
B
          subordinate court has assumed a jurisdiction which it does
          not have or has failed to exercise a jurisdiction which it
          does have or the jurisdiction though available is being
          exercised by the court in a manner not permitted by law
          and failure of justice or grave injustice has occasioned
c         thereby, the High Court may step in to exercise its
          supervisory jurisdiction.

          (5) Be it a writ of certiorari or the exercise of supervisory
          jurisdiction, none is available to correct mere errors of fact
D         or of law unless the following requirements are satisfied:
          (i) the error is manifest and apparent on the face of the
          proceedings such as when it is based on clear ignorance
          or utter disregard of the provisions of law, and (ii) a grave
          injustice or gross failure of justice has occasioned thereby.
E
          (6) A patent error is an error which is self-evident i.e. which
          can be perceived or demonstrated without involving into
          any lengthy or complicated argument or a long-drawn
          process of reasoning. Where two inferences are
          reasonably possible and the subordinate court has chosen
F         to take one view, the error cannot be called gross or
          patent.

           (7) The power to issue a writ of certiorari and the
          supervisory jurisdiction are to be exercised sparingly and
G         only in appropriate cases where the judicial conscience of
          the High Court dictates it to act lest a gross failure of justice
          or grave injustice should occasion. Care, ca"'~      ,,....., '
                                                                          and
          circumspection need to be exercised, when any of the
          abovesaid two jurisdictions is sought to be invoked during
H         the pendency of any suit or proceedings in a suboij:linate

                                                                 't,. . .
                                                                      '
ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                    921 '
MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

  court and the error though calling for correction is yet          A
  capable of being corrected at the conclusion of the
  proceedings in an appeal or revision preferred
  thereagainst and entertaining a petition invoking certiorari
  or supervisory jurisdiction of the High Court would obstruct
  the smooth flow and/or early disposal of the suit or              B
  proceedings. The High Court may feel inclined to intervene
  where the error is such, as, if not corrected at that very
  moment, may become incapable of correction at a later
  stage and refusal to intervene would result in travesty of
  justice or where such refusal itself would result in              c
  prolonging of the lis.

, (8) The High Court in exercise of certiorari or supervisory
  jurisdiction will not convert itself into a court of appeal and
  indulge in reappreciation or evaluation of evidence or
  correct errors in drawing inferences or correct errors of         D
  mere formal or technical character.

  (9) In practice, the parameters for exercising jurisdiction
 to issue a writ of certiorari and those c~lling for exercise
 of supervisory jurisdiction are almost similar and the width       E
 of jurisdiction exercised by the High Courts in India unlike
 English courts has almost obliterated the distinction
 between the two jurisdictions. While exercising jurisdiction
 to issue a writ of certiorari, the High Court may annul or
 set aside the act, order or proceedings of the subordinate         F
 courts but cannot substitute its own decision in place
 thereof. In exercise of supervisory jurisdiction the High
 Court may not only give suitable directions so as to guide
 the subordinate court· as to the manner in which it would
 act or proceed thereafter or afresh, the High Court may in         G
 appropriate cases itself make an order in supersession
 or substitution of the order of the subordinate court as the
 court should have made in the facts and circumstances of
 the case."
                                                                    H
    922      SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A         21. We regretfully note that while deciding the writ petition
    filed by respondent Nos. 1 and 2, the learned Single Judge did
    not keep in mind the principles laid down by this Court in the
    aforementioned two judgments and decided the same as if he
    was exercising appellate jurisdiction of the High Court. There
s   have been several other instances in which different High
    Courts have passed orders in exercise of power under Articles
    226 or 227 of the Constitution of India disregarding the
    limitations identified and indicated by this Court in several
    decisions on the exercise of that power. We hope and trust that
c   in future the High Courts would keep in view the limitations of
    certiorari jurisdiction/supervisory jurisdiction and refrain from
    deciding the writ petitions filed under Article 226 or petitions/
    applications filed under Article 227 of the Constitution as if they
    are adjudicating appeals filed against the orders of the lower
    courts or other judicial/quasi judicial bodies/authorities.
0
          22. Before concluding, we deem it appropriate to consider
    the argument of the learned counsel for respondent Nos. 1 and
    2 that the pleadings contained in the additional written
    statement filed by the appellants were inconsistent with and
E   beyond the scope of the defence set up by Abdul Razak in the
    original written statement and the trial Court was duty bound to
    discard the same in view of the provision contained in Order
    22 Rule 4 CPC and the judgments of this Court in J.C.
    Chatterjee v. Sri Kishan (1972) 2 SCC 461, Bal Kishan v. Om
F   Parkash (1986) 4 SCC 155 and Vidyawati v. Man Mohan
    (1995) 5 SCC 431. In our opinion, the argument of the learned
    counsel is meritless and deserves to be rejected. In the plaint
    filed by them, respondent Nos. 1 and 2 did not make a mention
    of the inventory proceedings held after the death of Abdul Kadar
G   Hazi Jaffar and his wife and order dated 26.9.1990 passed by
    the trial Court. In his written statement, Abdul Razak pleaded
    that before his death, the tenant Shri Rajaram D. Wagle had
    surrendered possession of the premises to him and that the
    plaintiffs had nothing to do with the suit premises. He further
H
   ABDUL RAZAK·(D) THROUGH LRS. AND ORS. v.                  923
   MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]                    .

  pleaded that the suit premises were given to defendant No.2 A
  for conducting business ofdistribution of liquor. There is nothing
  in the written statement of Abdul Razak from which it can be
  inferred that he has claimed ownership over the suit property.
  After they were brought on record as legal representatives of
  late Abdul Razak, the appellants filed additional written B
  statement incorporating therein the plea that the suit property
  had become subject matter of inventory proceedings No.80/89/
  A and the same was allotted to the daughters of Abdul Razak
  i.e. appellant Nos.3, 4 and 6. The appellants also pleaded that
  in the meeting of the Family Council held on 10.4.1990, a         c
  unanimous decision was taken for allotrnent ofthe properties
  and the .sarne was approved by the trial Court vide order dated ·
  26.9.1990. According to the appellants, Abdul Razak was
  looking after the suit property because atthe time of death of
  his parents; appellant Nos. 3, 4 and 6 were rninor. Therefore,
                                                                     0
· it cannot be said that the plea raised by the appellants is
  inconsistent with the averments contained in the original written
  statement by Abdul Razak. Order 22 Rule 4(1) and (2) CPC
  on which reliance has been placed by learned counsel for
  respondent Nos. 1 and 2 reads as under:
                                                                     E
      "4. Procedure in case of death of one of several
      defendants or of sole defendant.-(1) Where one of two
      or more defendants dies and the right to sue does not
      survive against the surviving defendant or defendants
     ·alone, or a sole defendant or sole surviving defendant dies   F
      and the right to sue survives, the court, on an application
      made in that behalf, shall cause the legal representative
      of the deceased defendant to be made a party and shall
      proceed with the suit

     (2) Any person so made a party may make any defence G
     appropriate to his character as legal representative of the
     deceased defendant.''                    ·             ·

     23. In J.C. Chatterjee's case, this Court interpreted the
                                                                    H
    924       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   above reproduced provision and held:

          Under sub-clause (ii) of Rule 4 of Order 22 of the Civil
          Procedure Code any person so made a party as a legal
          representative of the deceased, respondent was entitled
          to make any defence appropriate to his character as legal
B
          representative of the deceased respondent. In other
          words, the heirs and the legal representatives could urge
          all contentions which the deceased could have urged
          except only those which were personal to the deceased.
          Indeed this does not prevent the legal representatives from
c         setting up also their own independent title, in which case
          there could be no objection to the court impleading them
          not merely as the leg.JI representatives of the deceased
          but also in their personal capacity avoiding thereby a
          separate suit for a decision on the independent title.
D
          24. In Ba/ Kishan's case, the proposition laid down in J.C.
    Chatterjee's case was reiterated, but its width was limited by
    observing that the same would apply only to those cases where
    the Court hearing the case has jurisdiction to try the issues
E   relating to independent title also. The facts of Bal Kishan's case
    were that respondent No. 1 therein filed a petition for eviction
    of the tenant by alleging that the latter had sublet the premises
    without his consent. During the pendency of the petition, the
    tenant Musadi Lal died. Thereupon, the appellant Bal Kishan
F   filed an application for being brought on record as legal
    representative of the deceased. The Rent Controller allowed
    the application. Thereafter, the appellant filed additional written
    statement asserting therein that the premises in question being
    residential and commercial, the legal heir of the tenant could
G   not be treated as a tenant as defined under Section 2(h) of the
    Haryana Urban (Control of Rent and Eviction) Act, 1973 and
    that possession of such legal heir of the tenant would be that
    of a trespasser. He accordingly prayed for dismissal of the
    eviction petition. The Rent Controller rejected the appellant's
    plea and allowed the eviction petition by holding that Musadi
H
  ABDUL RAZAK (0) THROUGH LRS. AND. ORS. v.                925
  MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]

Lal had sublet the premises to Med Ram without his consent.        A
The appeal and revision filed by the appellant were dismissed
by the Appellate Authority and the High Court respectively.
Before this Court, the appellant relied upon the ratio of J.C.
Chatterjee's case and argued that he was entitled to raise an
additional plea that the eviction petition was not maintainable.   B
While rejecting this plea, this Court held:

     But in the instant case the appellant cannot claim the
    benefit of the above decision for two reasons. First, the
     appellant had not been brought on record as a respondent      C
    in the eviction petition in his personal capacity but had
    been brought on record only as the legal representative of
    Musadi Lal. Secondly, in the circumstances of this case,
    even if a prayer had been made to bring the appellant on
    record in his personal capacity, the Rent Controller could
    not have allowed the application and permitted him to raise    D
    the plea of independent title because such a plea would
    oust the jurisdiction of the Rent Controller to try the case
    itself. The observations made in the Jagdish Chander
    Chatterjee case have to be confined to only those cases
    where the court hearing the case has jurisdiction to try       E
    the issues relating to independent title also. The Rent
    Controller, who had no jurisdiction to pass the decree for
    possession against a trespasser could not have, therefore,
    impleaded the appellant as a respondent to the petition
    for eviction in his independent capacity.                      F

                                          (emphasis supplied)

     25. In Vidyawati's case, this Court considered the question
whether a person impleaded as a legal representative of the
deceased defendant can independently claim title to and G
interest in the property under a will. It was contended by the
appellant that claim of the original defendant and that of the
legal representative are founded on the will executed by
Champawati and the courts below were not right in refusing to
                                                                 H
    926      SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A  permit her to file additional written statement. While approving
 . the view taken by the courts below, this Court observed "whether
   the petitioner has independent right, title and interest de hors
   the claim of the first defendant is a matter to be gone into at a
   later proceeding. It is true that when the petitioner was
s impleaded as a party-defendant, all rights under Order XXll
   Rule 4(2), and defences available to the deceased defendant
   became available to her. In addition, if the petitioner had any
   independent right, title or interest in the property, then she had
   to get herself impleaded in the suit as a party-defendant.
C Thereafter, she could resist the claim made by the plaintiff or
   challenge the decree that may be passed in the suit. For taking
   this view, the Court relied upon the judgments in J.C.
   Chatterjee's case and Bal Kishan's case.

         26. The judgments of Bal Kishan's case and Vidyawati's
D   case are clearly distinguishable. In the first case, the earlier
    judgment in J.C. Chatterjee's case, which substantially supports
    the appellants was distinguished on the ground that the plea
    raised by the impleaded legal representative of the tenant was
    inconsistent with his defence and, if accepted, the same would
E   result in ouster of the jurisdiction of the Rent Controller. In the
    second case also, the Court found that the plea raised by the
    appellant, who was impleaded as legal representative of the
    defendant that she had independent title under the will executed
    by Champawati was not in consonance with the plea taken by
F   the original defendant. However, as discussed in the earlier part
    of the judgment, the claim made by the appellants is in no way
    inconsistent with or derogatory to the defence set up by Abdul
    Razak. In any case, once the additional written statement filed
    by the appellants was taken on record without any objection by
G   respondent Nos. 1 and 2, who also_ led their evidence keeping
    in view the pleadings of the additional written statement, the
    High Court was not at all justified in allowing the application filed
    for striking off the additional written statement and that too
    without even adverting to Order VI Rule 16 CPC and
H   considering whether respondent Nos. 1 and 2 were able to
 ABDUL RAZAK (D) THROUGH LRS. AND ORS. v.                 927
 MANGESH RAJARAM WAGLE [G.S. SINGHVI, J.]
make out a case for exercise of power by the court under that A
provision.

     27. In the result, the appealis allowed. The impugned order
of the High Court is set aside and the one passed by the trial
Court is. restored. Respondent Nos. 1 and 2 shall pay cost of
                                                                 8
Rs.25,000/- to the appellants for burdening them with
unnecessary litigation.

8.8.8.                                       Appeal allowed.