D/L- 23 22/09/2026 Ct. No.- 6 Aritra C.O. 3257 of 2026 M/s. MCS Share Transfer Agen Ltd. Vs. Debabrata Gupta Mr. S.P. Mukherjee, Sr. Adv., Mr. Shuvajit Bose ….for the petitioner Mr. Rajdeep Bhattacharya Mr. Kaustav Seal ….for the opposite party This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order dated August 12, 2026 passed by the learned Civil Judge (Sr. Div.), 8th Court at Alipore. By the order impugned the application under Order VIII Rule 9 of the Code of Civil Procedure stood rejected. The opposite party filed a suit for eviction and mesne profit against the petitioner herein. After the cross- examination of the P.W.1 was closed, petitioner filed an application praying for leave to file an additional written statement. The leave as sought for by the petitioner stood rejected by the impugned order. Being aggrieved, the defendant has approached this Court. Mr. Mukherjee, learned senior advocate appearing for the petitioner submits that the petitioner sought to incorporate the fact of issuance of a notice dated January 8, 2019 which was not readily available with the petitioner by way of a subsequent pleading. He submits that for such reason the leave could not be sought for prior to the 2 commencement of trial. He submits that by way of subsequent pleading the petitioner did not make any case which may be said to be contradictory or mutually destructive with the original written statement. He submits that the learned trial judge without considering the explanation given by the petitioner in the application praying for leave to file the subsequent pleading rejected the same. In support of his contention that an application under Order VIII Rule 9 of the Code of Civil Procedure is maintainable in the facts of the instant case, Mr. Mukherjee placed reliance upon a decision of the Hon’ble Madras High Court in the case of P. Saraswathi vs. C. Subramaniam, reported at 2013 (3) MWN (Civil) 770 and the decision of the Hon’ble Supreme Court in the case of Baldev Singh & Ors. vs. Manohar Singh & Anr., reported at (2006) 6 SCC 498. Mr. Bhattacharya, learned advocate appearing for the opposite party submits that since the trial has commenced the petitioner has taken the route of Order VIII Rule 9 of the Code of Civil Procedure in order to bypass the proviso to Order VI Rule 17 of the Code of Civil Procedure. He submits that the case which the petitioner is now seeking to make out by way of subsequent pleading is mutually destructive with the case made out by the petitioner in the application dated February 28, 2019 which stood rejected by an order dated January 13, 2026. 3 In support of his contention that leave was rightly refused, M. Bhattacharya placed reliance upon a decision of the Hon’ble Supreme Court in the case of Mondira Ghosh vs. Chaitali Ghosh, reported at 2026 SCC Online SC 951. Heard the learned advocates for the respective parties and perused the materials placed. Record reveals that the petitioner entered appearance in the suit for eviction and filed the written statement on August 30, 2018 and the written statement was accepted subject to payment of cost. Issues were framed on April 10, 2026 and the P.W. 1 was examined on June 3, 2026 and his cross-examination was closed on June 16, 2026. Thereafter the instant application under Order VIII Rule 9 of the Code of Civil Procedure was filed on July 16, 2026. Mr. Mukherjee, learned senior advocate appearing for the petitioner, in course of his argument, laid special emphasis on the case made out by the petitioner as stated in paragraph 2 of the proposed additional written statement. After going through the paragraph 2 of the proposed additional written statement this Court finds that the petitioner after narrating the incidents that took place in the last week of November, 2017 stated that the defendant-officials could find out the letter dated January 8, 2019 which was sent to the plaintiff. Mr. Mukherjee submits that for the purpose of bringing on record the foundational fact for tendering the 4 said letter in evidence, the statements made in paragraph 2 of the proposed additional written statement is necessary. He further submits that the said fact is necessary for the purpose of deciding the real controversies between the parties in the suit. At this stage, it would be relevant to took note of the fact that the petitioner filed a petition on February 28, 2019 and in paragraph 4 thereof it was stated that the possession of the tenanted premises are with the defendant as on that date i.e. as on February 28, 2019. The learned trial judge rightly noted that the petitioner sought to take a contradictory stand by way of filing the additional written statement to incorporate the fact that the petitioner left the suit property on January 8, 2019. Proviso to Order VI Rule 17 of the Code of Civil Procedure curtails the discretion of the Court to allow an application for amendment after the commencement of trial unless the party applying for amendment of pleading satisfies the court that he was prevented by sufficient cause for not filing the application prior to the commencement of trial. Mr. Mukherjee, learned senior advocate appearing for the petitioner could not satisfy this Court as to why the facts which the petitioner sought to incorporate by way of additional written statement could not have been sought to be incorporated by filing an application under Order VI Rule 17 of the Code of Civil Procedure. 5 To the mind of this Court the step taken by the petitioner by filing an application under Order VIII Rule 9 of the Code is only to bypass the proviso to Order VI rule 17 of the Code of Civil Procedure as the instant application has been filed after the evidence of P.W.1 stood closed. At this stage, it would be relevant to take note of the decision of the Hon’ble Supreme Court in the case of Mondira Ghosh (supra) wherein the Hon’ble Supreme Court in more or less identical fact situation held that the ploy was adopted to get over the hurdle raised by the proviso to Order VI Rule 17 of the Code. The Hon’ble Supreme Court held thus:- “12. Further, the very filing of such an application by the defendant, having failed to seek amendment of her written statement at the appropriate stage and after the trial in the suit had already commenced, was clearly an abuse of process. As noted by the learned Judge himself, this ploy was adopted to get over the hurdle raised by the proviso to Order 6 Rule 17 CPC, which would not have permitted the defendant to seek amendment of her written statement.” That apart, Order VIII Rule 9 does not confer any absolute right upon a party to file any pleading subsequent to the written statement. A party seeking to file subsequent pleading has to first apply for leave of the court except in the circumstances wherein a party is exempted from obtaining leave of the court as specifically stated in the Order VIII Rule 9 of the Code. After going through the application praying for leave to file the additional written statement this Court finds that the only reason stated in the said application is that 6 during search of the documents in the Office the notice dated January 8, 2019 could be detected. The said explanation, to the mind of this Court, cannot be a sufficient ground for the Court to exercise its discretion in favour of filing the subsequent pleading after commencement of trial. In Baldev Singh (supra) the Hon’ble Supreme Court held that “commencement of trial” as used in proviso to Order VI Rule 17 of the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In the fact and circumstances of the said reported case, the Hon’ble Supreme Court after noting that the parties were yet to file their documents was of the view that the proviso to Order VI Rule 17 of the Code of Civil Procedure could not have been rejected. The said decision is not an authority for the proposition as to whether a litigant can be allowed to bypass the proviso to Order VI Rule 17 of the Code of Civil Procedure in the garb of filing subsequent pleading under Order VIII Rule 9 of the Code of Civil Procedure. In P. Saraswathi (supra) the Hon’ble Madras High Court held that Order VIII Rule 9 of the Code of Civil Procedure gives a wide discretion to the court to receive the written statement or the additional written statement and the rigid principle applicable in the case of amendment of plaint under Order VI Rule 17 of the Code 7 of Civil Procedure cannot be applied in the case of receiving additional written statement under Order VIII Rule 9 of the Code as there is no restriction with regard to the receiving of additional written statement after commencement of trial. In view of the decision of the Hon’ble Supreme Court in Mondira Ghosh (supra), the decision in the case of P. Saraswathi (supra) cannot be said to be a binding precedent upon this Court. The learned trial judge assigned cogent reasons for rejecting the application praying for leave to file the additional written statement. For such reason this Court is not inclined to interfere with the order impugned. Accordingly, CO 3257 of 2026 stands dismissed. There will be no order as to costs. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Hiranmay Bhattacharyya, J.)