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2005 DIGILAW 1125 (MAD)

Chellakkal @ Chellammal v. Ammaniammal & Others

2005-07-21

R.BANUMATHI

body2005
Judgment :- This Revision is directed against the order of Additional Subordinate Judge, Erode, made in I.A.No. 281 of 1999 in O.S.No. 50 of 1990 dated 09-04-1999, dismissing the Application filed under Or.8 R.9 C.P.C., declining to receive the Additional Written Statement. The First Defendant is the Revision Petitioner. 2. The relevant facts for disposal of these Revision Petitions could briefly be stated thus:- a) O.S.No.50 of 1990:- The Plaintiffs are related as noted below:- Karuppan Ammaniammal Karuppayammal Palaniammal Karuthan Palanisamy (P.1) (P.2) (P.3) (P.4) (P.7) Ayyavoo (P.5) and Karuppan (P.6) are the sons-in-law of Karuppan. In the plaint, the Plaintiffs have alleged that their father Karuppan purchased common half share in the suit properties and he was in possession and enjoyment of the common half share till his death. The said Karuppan died intestate in the year 1961. After his death, the Plaintiffs became entitled to each 1/7th share. The First Defendant had purchased common half share in the suit properties. The First Defendant has obtained an usufructuary mortgage over the common 1/4th share from the Plaintiffs 4 and 7, which is said to have been discharged. By influencing the Revenue Officials, the First Defendant had obtained resurvey patta. There was no enquiry for resurvey and the resurvey proceedings, which was held behind the back of the Plaintiffs, is not binding on the Plaintiffs and the same would not confer any right over the First Defendant. The First Defendant had filed the vexatious suit in O.S.No. 10 of 1990 on the file of Subcourt, Erode, claiming that he is in possession and enjoyment of the suit properties, as the owner and as the cultivating tenant. The plaintiffs 4 and 7 have filed O.S.No. 199 of 1989 on the file of the D.M.C., Erode, for declaration and permanent injunction and both the suits are pending. Inspite of repeated demands, the First Defendant has not come forward to effect amicable partition, hence, the Plaintiffs have filed the suit for partition and allotment of 12/28th shares to the Plaintiffs and for declaration that the resurvey of the suit properties in S.F.No. 827-F, is null and void and that it would not bind the Plaintiffs. Inspite of repeated demands, the First Defendant has not come forward to effect amicable partition, hence, the Plaintiffs have filed the suit for partition and allotment of 12/28th shares to the Plaintiffs and for declaration that the resurvey of the suit properties in S.F.No. 827-F, is null and void and that it would not bind the Plaintiffs. b) Denying the averments in the Plaint, the First Defendant has filed an elaborate Written Statement contending that the Plaintiffs 1 to 3 have abandoned their claim in the suit properties in favour of the Plaintiffs 4 and 7. The Plaintiffs 4 and 7 have been in possession and enjoyment of the suit properties in their own right. The Plaintiffs 1 to 3 have lost their right and the Plaintiffs 4 and 7 have perfected their title by way of adverse possession.The Plaintiffs 4 and 7 have executed an usufructuary mortgage on 19-1-1967. In the Old S.F.No.27-A of Vadamugham Kangayam Palayam Village, the total extent is Punjai 4.32 Acres. Originally, the said land belonged to one Karuppa Gounder, Rangasamy and his family. They sold away the Western half share to Karuppan, the father of the Plaintiffs 4 and 7 and his brother Chinnan. The suit property, namely, S.F.No. 27-A is the joint family property of the family of Karuppan and the Plaintiffs 4 and 7. The First Defendant had purchased 1/4th share of one Chinna Karuppan under the Registered Sale Deed dated 10-9-1959. In the description of property, though it is wrongly stated as common 1/4th share, the Plaintiffs 4 and 7 and the First Defendant enjoyed specific plots, namely – the Western half by the Plaintiffs 4 and 7 and Eastern half by the First Defendant. The said possession and enjoyment was pursuant to oral partition between the parties. Before effecting resurvey, the Plaintiffs 4 and 7 were issued notice. Since, they had no objection for the resurvey, the same was effected and finalised. The Plaintiffs 4 and 7 have admitted the fact of resurvey and issuance of patta in their name in the suit filed in O.S.No.1499/1989 on the file of D.M.C., Erode. The Plaintiffs 1 to 3, 5 and 6 are only henchmen of the Plaintiffs 4 and 7. Hence, the Plaintiffs cannot be heard to raise objection against the resurvey. The Plaintiffs 1 to 3 have no right, title and possession in the suit properties. The Plaintiffs 1 to 3, 5 and 6 are only henchmen of the Plaintiffs 4 and 7. Hence, the Plaintiffs cannot be heard to raise objection against the resurvey. The Plaintiffs 1 to 3 have no right, title and possession in the suit properties. The Plaintiffs 4 and 7 being the owners of the Western half share in survey No.85/1, had leased out the same to the First Defendant on an annual lease of Rs.50/-. The First Defendant has also filed a suit in O.S.No.10 of 1990 on the file of Subcourt, Erode, against the Plaintiffs 4 and 7 and the same is pending. Since, the Plaintiffs 4 and 7 have already executed an usufructuary mortgage regarding their Western half share, the Plaintiffs are not entitled to any relief in the suit. c) I.A.No.281 of 1999:- When the Suit was pending, the counsel appearing for the Plaintiffs reported no instructions. That memo was recorded and the learned Subordinate Judge, Erode, directed notice to the Plaintiffs 4 and 7 alleging that by issuance of notice to the Plaintiffs 4 and 7, the entire nature of the suit is changed and that the First Defendant is a tenant under the Plaintiffs 4 and 7. The First Defendant had filed this Application under Or.8 R.9 C.P.C. seeking the permission of the Court to file Additional Written Statement. d) The Application was resisted by the Plaintiffs contending that the Plaintiffs 4 and 7 had acted against the interest of other Plaintiffs. By issuing notice to the Plaintiffs 4 and 7, the nature of the suit is not changed. Further, the First Defendant was never a tenant under the Plaintiffs 4 and 7. Since, the nature of the suit is not changed, there is no necessity to file an Additional Written Statement, that too, after the commencement of the trial. The First Defendant is not entitled to put forth his defence on the basis of the events, which have taken place during the pendency of the Suit and after the commencement of the trial. e) Upon consideration of the contention of both the parties in I.A.NO. 281 of 1999, the learned Additional Subordinate Judge has dismissed the Application on the ground that the Application is a belated one. Accepting the contention of the Respondents/Plaintiffs that the Application has been filed to delay the proceedings, the trial Court dismissed the Application. 3. e) Upon consideration of the contention of both the parties in I.A.NO. 281 of 1999, the learned Additional Subordinate Judge has dismissed the Application on the ground that the Application is a belated one. Accepting the contention of the Respondents/Plaintiffs that the Application has been filed to delay the proceedings, the trial Court dismissed the Application. 3. Aggrieved over the dismissal of the Application to receive Additional Written Statement, the First Defendant has preferred this Revision. The learned counsel for the Revision Petitioner has contended that by issuance of notice to the Plaintiffs 4 and 7, the nature of the suit is changed and an opportunity ought to have been given to file the Additional Written Statement. It is further submitted that after the filing of the suit, the property in R.S.No.85/1 was sold by the Plaintiffs 1 to 3 to the 8th Plaintiff (who has been impleaded as a party to the suit as per the order in I.A.No.1981 of 1991) and in view of the conclusion of the other suits in O.S.Nos. 42 of 1998 and 100 of 1995, an opportunity ought to have been given to the First Defendant to file the Additional Written Statement. 4. Notice issued to the Respondents have been duly served, but, they have not entered appearance. The points urged by the Respondents/Plaintiffs in the trial Court had been taken into consideration. 5. Whether the order declining permission to file Additional Written Statement on the ground that it has been filed belatedly (nine years after the filing of the suit), suffers from any material irregularity warranting interference is the only point that arises for consideration in this Revision Petition. 6. The main contention of the First Defendant is that the Plaintiffs 1 to 3 have relinquished their right in the suit property in favour of the Plaintiffs 4 and 7. According to the First Defendant, the suit properties have been originally divided 50 years ago. The sisters of the Plaintiffs 4 and 7 are not having any right over the suit properties. The Plaintiffs 4 and 7 are said to have executed an usufructuary mortgage in favour of the First Defendant and the First Defendant was put in possession and enjoyment of R.S.No.85/1. After the filing of the suit, the suit property in R.S.No.85/1 is alleged to have been sold to the 8th Plaintiff, by the Plaintiffs 1 to 7. The Plaintiffs 4 and 7 are said to have executed an usufructuary mortgage in favour of the First Defendant and the First Defendant was put in possession and enjoyment of R.S.No.85/1. After the filing of the suit, the suit property in R.S.No.85/1 is alleged to have been sold to the 8th Plaintiff, by the Plaintiffs 1 to 7. In the Additional Written Statement, the First Defendant has alleged that the sale deed in favour of 8th Plaintiff would not bind the First Defendant and the same is hit under the doctrine of Lispendens. Apart from the suit in O.S.No.50 of 1990, there had been number of other litigations between the parties. After the filing of the suit in O.S.No.50 of 1990, other suits have been either disposed of (or)concluded. O.S.No.1185 of 1974,in which, the First Defendant claimed tenancy right was dismissed and is said to have been ended in favour of the First Defendant. 7. The newly impleaded party/8th Plaintiff has filed the suit in O.S.No.100 of 1995 basing his right and title upon the sale deed dated 14-02-1990. The said Suit was also dismissed. Further, in the Additional Written Statement, the First Defendant has also referred to another suit in O.S.No.42 of 1998 filed by the Plaintiffs 4 and 7, wherein, they are alleged to have admitted the resurvey, which has been challenged in the plaint averments. The suit in O.S.No.1185 of 1974 filed by the 4th Plaintiff on the file of the D.M.C., Erode is also said to be dismissed. The conclusion of the above suits are subsequent to the written statement, which was filed in November 1990. The Counsel appearing for the Plaintiffs reported no instructions in the Suit. Thereafter, the Court has issued Notice to the Plaintiffs 4 and 7, under whom, the First Defendant claim his right under the Usufructuary Mortgage Deed. Under such changed circumstances and ordering of notice to the Plaintiffs 4 and 7, it has become necessary for the First Defendant to file the Additional Written Statement. 8. Or.8 R.9 C.P.C. enables the Court to grant permission to file additional pleadings – by Additional Written Statement (or) by Reply Statement. The discretion is conferred upon the Court to grant permission. The First Defendant cannot be allowed to file the Additional Written Statement, which is likely to cause prejudice to the Plaintiffs. 8. Or.8 R.9 C.P.C. enables the Court to grant permission to file additional pleadings – by Additional Written Statement (or) by Reply Statement. The discretion is conferred upon the Court to grant permission. The First Defendant cannot be allowed to file the Additional Written Statement, which is likely to cause prejudice to the Plaintiffs. Since, no instructions was reported for the Plaintiffs and the other suits filed prior to the suit and subsequent to the suit have been disposed of and in that view of the changed circumstances, the First Defendant had filed an elaborate Written Statement. Without going into the merits of the contention urged, the learned Subordinate Judge, Erode, dismissed the Application on the only ground that the Application has been filed belatedly. 9. No doubt, while considering the Application to file the Additional Written Statement, the Court can take into consideration the delay in filing the Written Statement. The Suit is of the year 1990. The Additional Written Statement of the First Defendant was filed in November 1990. The Additional Written Statement was filed nearly after nine years i.e., on 30-3-1999. Earlier, the First Plaintiff was proceeding on one set of facts, namely, setting forth his contention mainly against the Plaintiffs 1 to 3 and also against the Plaintiffs 4 and 7. Later, since the Plaintiffs have sold part of the suit properties to the 8th Plaintiff by a sale deed dated 14-2-1990 and in view of the subsequent change in the circumstances, namely, the disposal of the other suits. Though, the Additional Written Statement was filed nearly nine years after the filing of the Suit, the First Defendant ought to have been given an opportunity to put forth his further defence by referring to the subsequent events. In declining to receive the Additional Written Statement, there is no proper exercise of discretion. The impugned order suffers from serious infirmity warranting interference. By setting aside the impugned order, the Revision is to be allowed. 10. For the foregoing reasons, the order of Additional Subordinate Judge, Erode, made in I.A.No. 281 of 1999 in O.S.No. 50 of 1990 dated 09-04-1999, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.No.8822 of 1999 is closed. The learned Additional Subordinate Judge, Erode, is directed to receive the Additional Written Statement and proceed with the case and expedite the trial proceedings.