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2002 DIGILAW 588 (MAD)

Kolandasamy v. Rathinam, Rathinayal

2002-07-09

M.KARPAGAVINAYAGAM

body2002
Judgment :- M. KARPAGAVINAYAGAM, J. ( 1 ) KOLANDASAMY, the defendant is the petitioner herein. ( 2 ) THE respondent, sister of the petitioner, filed a suit for partition and separate possession of her 1/2 share in suit properties. According to her, the suit properties belonged to the maternal grandfather of the plaintiff and the defendant and after his death, the plaintiff and the defendant became entitled to 1/2 share each in the properties. ( 3 ) THE petitioner/defendant filed written statement stating that the deceased grandfather executed a Will in favour of the defendant and pursuant to the same, the petitioner alone is entitled to the suit properties. Moreover, the petitioner alone is in possession and enjoyment of the properties including the dwelling house. Therefore, the plaintiff is not entitled to any share. ( 4 ) IN view of the plea of the defendant with reference to the entitlement of the properties as per the Will, the defendants side was allowed to examine its witnesses first Accordingly, d. W. 1 to D. W. 3 were examined. After the defendants side was over, on the plaintiffs side, P. W. 1 was examined and the matter was posted for cross-examination P. W. 1. ( 5 ) AT that stage, the petitioner/defendant filed an application under Order 8 Rule 9 to grant him leave to file additional written statement raising question of law with reference to Section 23 of the Hindu Succession act by which the plaintiff being the female heir is not entitled to claim partition in the dwelling house. ( 6 ) THIS application was stoutly opposed by the plaintiff/respondent by filing counter contending that the said application was not only belated but also not bona fide with a view to drag on the proceedings. The trial Court upholding the objection raised by the plaintiff/respondent, dismissed the application. Hence, this Civil Revision Petition. ( 7 ) I have heard the counsel for the petitioner as well the respondent and gone through the impugned order and other records. ( 8 ) ON perusal of the affidavit and the counter statement filed before the trial Court, it is noticed that the suit for partition was filed by the plaintiff in the year 1994 in O. S. No. 444 of 1994. ( 8 ) ON perusal of the affidavit and the counter statement filed before the trial Court, it is noticed that the suit for partition was filed by the plaintiff in the year 1994 in O. S. No. 444 of 1994. The written statement was filed by the petitioner/defendant contending that the defendant is entitled to the entire properties by virtue of the Will executed by the grandfather and that the entire properties are in possession and enjoyment of the defendant. ( 9 ) ON the basis of the pleadings in the plaint and written statement, issues were framed. Thereafter, the case listed for trial. As noted above, the defendants side commenced examination of its witnesses. After the examination of D. Ws. 1 to 3 was over, P. W. 1 entered into the box and gave deposition in chief. While the matter was posted for cross-examination, the petitioner/defendant chose to file the petition under Order 8 Rule 9 seeking permission to file additional written statement, on 22. 11. 2000 stating that the plaintiff would not be entitled to claim partition in view of section 23 of the Hindu Succession Act. ( 10 ) THE reason given in the affidavit filed before the trial Court for not having raised this point in the earlier written statement is his inadvertent mistake and oversight. The trial court rejected the said plea observing that the said reason is not acceptable, besides it is belated. It is also observed that when the comprehensive issue was already framed as to whether the plaintiff would be entitled to the partition of the suit properties, the question of entitlement with reference to Section 23 of the Hindu Succession Act would be argued after the conclusion of trial. ( 11 ) ORDER 8, Rule 9 of Code of Civil Procedure reads thus: “no pleading subsequent to the Written statement of a defendant other than by way of defence to a set-off (or counterclaim) shall be presented except by the leave of the Court and upon such terms as the Courts 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 for presenting the same. " ( 12 ) IT is settled law that the defendant cannot insist that Court must receive additional written statement as of right. " ( 12 ) IT is settled law that the defendant cannot insist that Court must receive additional written statement as of right. The above rule requires permission of the Court before any party can make a further pleading after written statement has been filed. Where a defendant intends to file additional written statement, he must file an application showing the circumstances as to why he failed to raise such a plea in the original written statement and the reason for the failure also must be accept ( 13 ) ONLY in that context, the Court has to exercise its discretionary powers in taking decision as to whether additional written statement has to be accepted or not. Under what circumstances leave is to be granted and how the discretion is to be exercised depend on the facts and circumstances of each case. While exercising discretion, the Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how far the opposite party will be put to hardship, etc. ( 14 ) IN the light of the above principles which have been laid down by this Court in Ramachandra Rao v. Mohideen, the trial court has decided that the filing of the application along with the additional written statement after a lapse of six years of filing the suit cannot be entertained, as it is a belated stage and the same is unnecessary. ( 15 ) CHALLENGING the above order dated 13. 12. 2000, the revision has been filed before this Court on 12. 2. 2001 and notice of motion was ordered on 20. 2. 2001. Thus, it is seen that even though the trial has already commenced, the continuance of the trial has been stopped from the date of the application i.e. on 22. 11. 2000 till date. ( 16 ) ON going through the typed set, it is clear that the question relating to the applicability of Section 23 of the Hindu Succession act need not be mentioned in the form of additional statement as the factual position with regard to the stand taken by the defendant has already been mentioned in the first written statement. ( 16 ) ON going through the typed set, it is clear that the question relating to the applicability of Section 23 of the Hindu Succession act need not be mentioned in the form of additional statement as the factual position with regard to the stand taken by the defendant has already been mentioned in the first written statement. ( 17 ) AS correctly pointed out by the trial court, the applicability of Section 23 of the act can be argued during the course of arguments after the trial is over on the strength of the issue already framed with regard to the entitlement of the plaintiff for partition. Thus, it is clear that the contention of the respondent/plaintiff that the defendant wantonly filed the additional written statement in order to delay the trial with a view to defeat the right of the plaintiff to get partition would contain force. ( 18 ) FURTHERMORE, the reason given in the affidavit seeking for permission for filing additional written statement is that the same was not mentioned due to inadvertent mistake and oversight. This reason is not only artificial but also unacceptable. ( 19 ) WHILE dealing with this matter, for the purpose of exercising the discretionary powers under Order 8 Rule 9 C. P. C. , this Court will have to necessarily, consider the conduct of the party and stage of the litigation. ( 20 ) IN this case, the defendant chose to file the application at the fag end and belated stage of the litigation without adducing reason. Furthermore, this Court cannot but express its opinion about the conduct of the party, viz. , defendant who deliberately wanted to stop the trial by filing some application to get orders from the trial Court with a view to approach this Court to further delay the matter, which is not bona fide. ( 21 ) UNDER those circumstances, it would be appropriate to impose sufficient costs on the petitioner/defendant for having harassed the plaintiff and for having caused inconvenience to both the trial Court as well as this Court. Accordingly, the petitioner/defendant is directed to pay costs of Rs. 2,500/- within one month from today. Out of this Rs. 2,500/-, Rs. 1,000/- to be paid to the plaintiff and the balance amount of Rs. 1,500/- to be paid to the Bar Association, Erode. Accordingly, the petitioner/defendant is directed to pay costs of Rs. 2,500/- within one month from today. Out of this Rs. 2,500/-, Rs. 1,000/- to be paid to the plaintiff and the balance amount of Rs. 1,500/- to be paid to the Bar Association, Erode. The defendant is further directed to get receipts from both and file the same before the trial Court within the stipulated time. The trial Court is directed to continue the trial and dispose of the matter as expeditiously as possible. ( 22 ) WITH the above observations, the Civil revision Petition is dismissed. Consequently, C.M.P. No. 2586 of 2001 is closed. Revision dismissed.