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2005 DIGILAW 474 (MAD)

Fransisco Pandian v. Joseph & Another

2005-03-19

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Section 115 C.P.C against the order of the District Munsif, Srivaikuntam dated 03.12.2002 in I.A.No.775 of 2002 in O.S.No.136 of 2001, as stated therein.) This Civil Revision Petition is directed against the Order of District Munsif, Srivaikuntam dated 03.12.2002 in I.A.No.775 of 2002 in O.S.No.136 of 2001, dismissing the Petition filed under Order VIII Rule 9 C.P.C – Receipt of Reply Statement filed by the Plaintiff. Revision Petitioner is the Plaintiff. 2. Relevant facts necessitated for disposal of this Civil Revision Petition could briefly be stated thus:- Suit Property relates to Nazereth Village Punjai Land S.No.220/1 ..... 7.18 acres on the North Eastern side ----------------------------- Out of 9.38 Acres New Sub Division .... 220/1A. Case of the Plaintiff is that the Suit Property belonged to her Mother – Gnanammal. Plaintiff's Mother - Gnanammal executed a Settlement Deed in respect of the Plaint First Schedule Property in favour of the Plaintiff. On 18.09.1996 and 26.06.1997, the Plaintiff alienated a portion of the First Schedule Property. The Plaintiff claims to be in exclusive possession and enjoyment of the Plaint Schedule Property. In the month of September 2000, the Second Defendant gave a Petition, denying the Title of the Plaintiff to the Tahsildar. Upon enquiry, on 21.08.2001, the Tahsildar, Tiruchendur cancelled the Patta issued in favour of the Second Defendant and granted the Patta to the Plaint Schedule property in favour of the Plaintiff. Without any right in the Suit Property, the Defendants have been attempting to trespass and interfere with the peaceful possession and enjoyment of the Suit Property and hence, the Plaintiff has filed the Suit in O.S.No. 136 of 2001 on the file of District Munsif, Srivaikuntam for Declaration that the Plaintiff is the absolute owner of the Second Schedule Property and for consequential Permanent Injunction. 3. Denying right of the Plaintiff in the Suit Property, the Defendants have filed Written Statement contending that the entire First Schedule Property originally belonged to Sarkuna Nadar and his Wife Gnanammal and they were in possession and enjoyment of the same. After the death of Sarkuna Nadar and his Wife Gnanammal, their Sons Paulraj Nadar and late Sarkunam Daniel Nadar came into possession and enjoyment of the Plaint Schedule Property. The said Paulraj Nadar died intestate leaving his Sons Jebaraj i.e., the Second Defendant as his Legal Heir. After the death of Sarkuna Nadar and his Wife Gnanammal, their Sons Paulraj Nadar and late Sarkunam Daniel Nadar came into possession and enjoyment of the Plaint Schedule Property. The said Paulraj Nadar died intestate leaving his Sons Jebaraj i.e., the Second Defendant as his Legal Heir. The said Sarkunam Daniel Nadar died intestate leaving behind his Sons – First Defendant-Joseph, Edward, George, Daughter Rathinamani Sundari Gnanapushpam and Chandra, Rajan, Jeyantha as his Legal Heirs, Only the above persons are entitled to the First Schedule Property and they are in joint possession and enjoyment of the same. The Patta granted by the Revenue Department is only in continuation of ancient Revenue Records. The Second Defendant is paying Kist to the First Schedule Property. The Plaintiff and one Gnanam David claimed right to the Plaint Schedule Property by fabricating certain documents and are not entitled to the Suit Property. The Patta granted by the Tahsildar, Tiruchendur and other receipts filed along with the Plaint would not create any right upon the Plaintiff over the Plaint Schedule Property. The Settlement Deed filed along with the Plaint is a self-serving Document, which would not create any right to the Plaintiff over the Plaint Scheduled Properties. The Sale Deeds said to have been executed by the Plaintiff would neither prove Plaintiff's Title nor extinguish the Defendants' Title over the Property. 4. Since the Defendants have denied Title of the Plaintiff, the Revision Petitioner / Plaintiff filed I.A.No.775 of 2002 praying the Court to receive the Reply Statement. In the Reply Statement, the Plaintiff has pleaded that "she came to know about the Registered Will executed by her Adopted Father Jesudasan Augustus Masilamani dated 12.02.1923 and the Will was proved to be genuine by an order dated 23.08.1969 in O.P.No.31/69 on the file of the Subordinate Judge, Tuticorin and she came to know about the Will and the Letters of Administration only recently". The Plaintiff has prayed that it has become necessary to file a Reply Statement, stating about the Will and Letters of Administration in O.P.No.31 of 1969. 5. The Respondents / Defendants have resisted the Application contending that there was no Registered Will by Jesudasan Augustus Masilamani. Denying any such Will dated 12.02.1923, the Defendants have filed their Counter Statement. 6. The Plaintiff has prayed that it has become necessary to file a Reply Statement, stating about the Will and Letters of Administration in O.P.No.31 of 1969. 5. The Respondents / Defendants have resisted the Application contending that there was no Registered Will by Jesudasan Augustus Masilamani. Denying any such Will dated 12.02.1923, the Defendants have filed their Counter Statement. 6. Upon consideration of the rival contentions, learned District Munsif has dismissed the Application filed under Order VIII Rule 9 C.P.C. By the cryptic order, learned District Munsif found that the requirements of Order VIII Rule 9 C.P.C are not made out. Learned District Munsif expressed doubts that the Revision Petitioner / Plaintiff has raised the new plea contrary to the earlier pleadings. After discussing the purport of Order VIII Rule 9 C.P.C, learned District Munsif found that the rival contentions and the plea raised in the Written Statement could be made clear by adducing evidence during the Trial and that there is no necessity to receive the Additional Reply Statement. 7. Aggrieved over the order of dismissal, the Revision Petitioner / Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, on behalf of the Revision Petitioner / Plaintiff, placing reliance upon the decisions reported in Mrs. Vera Marie Vas And Another Vs Mrs. Joyce Primrose Preston Nee Vas And Others ( 2002 (3) M.L.J. 510 ) and M. Thangavel Pillai ..Vs.. The Commissioner, Corporation Of Tiruchirappalli (2001 (2) M.L.J. 36), it is contended that an opportunity ought to have been given to the Revision Petitioner / Plaintiff to file the Reply Statement explaining the pleadings set forth in the Written Statement. It is further submitted that by filing the Reply Statement, the Plaintiff has only tried to reinforce the earlier averments in the Plaint by properly tracing the Title of her Mother-Gnanammal. Assailing the Impugned Order, learned counsel for the Revision Petitioner has submitted that the Impugned Order is vague and unsustainable. 8. The Second Respondent entered appearance through counsel; but there was no representation. Private Notice sent to the First Respondent has been received by him. Service held sufficient for the First Respondent. Though no representation for R-2, contentious points raised by the Second Respondent in the Trial Court have been taken into consideration while hearing the Revision Petition. 9. 8. The Second Respondent entered appearance through counsel; but there was no representation. Private Notice sent to the First Respondent has been received by him. Service held sufficient for the First Respondent. Though no representation for R-2, contentious points raised by the Second Respondent in the Trial Court have been taken into consideration while hearing the Revision Petition. 9. Whether there is proper exercise of discretion in declining permission to file Reply Statement and dismissing the Application filed by the Plaintiff under Order VIII Rule 9 C.P.C is the only short point that arises for consideration in this Civil Revision Petition. 10. The Plaintiff claims Right and Title to the Suit Property through her Mother stating that her Mother-Gnanammal had executed Settlement Deed dated 10.03.1994 in respect of Plaint First Schedule Property. According to the Plaintiff, her Mother-Gnanammal was entitled to the Suit Property and that she was in continuance and exclusive possession and enjoyment of the Suit Property for a long time. The Defendants have filed the Written Statement stating that the Property originally belonged to Sarkunam Nadar and his Wife Gnanammal. After the death of Sarkunam Nadar and his Wife Gnanammal, the property has devolved upon his Sons Paulraj Nadar and Sarkunam Daniel Nadar and the Defendants claim right through legal heirship through their Fathers. 11. In the light of the pleadings set forth by the parties, the Plaintiff has got right of filing Reply to the Written Statement. Since in the Written Statement, the Defendants have denied the exclusive right of Gnanammal, who is the Settlor, the Plaintiff's right to reply by filing the Reply Statement cannot be denied. 12. Learned District Munsif was under mis-impression that there is no necessity to file the Written Statement. In his view, reply by the Plaintiff could be made clear by adducing evidence at the time of Trial. No doubt, law does not compel the Plaintiff to file the rejoinder explaining the Pleadings / averments made in the Written Statement. But, when the Plaintiff chooses to exercise the option by filing the Statement, the right cannot be denied. This is all the more so, when the ancient document viz., Will dated 12.02.1923 is said to have been executed that the same was proved to be genuine by an order of Court dated 23.08.1969 in O.P.No.31/69. But, when the Plaintiff chooses to exercise the option by filing the Statement, the right cannot be denied. This is all the more so, when the ancient document viz., Will dated 12.02.1923 is said to have been executed that the same was proved to be genuine by an order of Court dated 23.08.1969 in O.P.No.31/69. The Plaintiff has got right to put forth the pleadings, set forth the contentions regarding the Will and the Letters of Administration granted. 13. Pointing out that opportunity is to be given to the party to file the subsequent pleadings and referring to number of decisions, in Mrs. Vera Marie Vas And Another ..Vs.. Mrs. Joyce Primrose Preston Nee Vas And Others ( 2002 (3) M.L.J. 510 ) C.NAGAPPAN, J. has observed that the Plaintiff has got right of reply to the Written Statement, if in the Written Statement, the Defendant sets out a counter claim puts forth a new case. It is further observed that by taking permission of the Court the Plaintiff could file the Additional Reply Statement and the learned Single Judge has agreed with the view expressed by the Karnataka High Court reported in I.L.R. 1980 (1) Karnataka 247. In the said decision, by receiving the Reply Statement the Trial Court has exercised the discretion properly and the Revision Petition filed by the Petitioner / Defendant was dismissed. The views expressed by the learned Single Judge squarely applies to the case in hand, where the Plaintiff has sought permission of the Court to file Additional Statement. The learned District Munsif was not right in declining permission to file the Reply Statement. 14. There is no proper exercise of judicial discretion. Learned District Munsif not only denied the opportunity to the Plaintiff, but there is also no proper exercise of judicial discretion. In that view of the matter, the order of the District Munsif, Srivaikuntam is to be set aside and this Civil Revision Petition is to be allowed. 15. In the result, the order of the District Munsif, Srivaikuntam dated 03.12.2002 in I.A.No.775 of 2002 in O.S.No.136 of 2001 is set aside and this Civil Revision Petition is allowed. The Trial Court is directed to receive the Reply Statement filed by the Revision Petitioner / Plaintiff. In the circumstances of the case, there is no order as to costs. The connected C.M.P.No.1321 of 2003 is closed.