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2005 DIGILAW 859 (MAD)

Kandasamy Gounder v. Appavaoo & Others

2005-06-15

R.BANUMATHI

body2005
Judgment :- This revision is directed against the fair and decretal order dated 20.3.2003 made in I.A.No.426/2001 in O.S.No.293/1995, by the District Munsif Court, Tiruchengode dismissing the petition filed under Or.8 R.9 CPC, refusing to receive the Reply Statement. Petitioner is the Revision Petitioner. 2. The Plaintiff has filed the suit O.S.No.293/1995 for partition. As per the averments in the plaint, case of the Plaintiff is that the suit property belongs to the Plaintiff and the two Defendants, who are the sons of Nanjappa Gounder. Further case of the Plaintiff is that the suit properties were being jointly enjoyed by the Plaintiff and Nanjappa Gounder. After the demise of Nanjappa Gounder, the Plaintiff has been finding it difficult to enjoy the suit property jointly with the Defendants. In the month of Aani, 1995, with the help of the Village Administrative Officer, the Plaintiff was able to divide the properties by metes and bounds by planting stones. By removing the stones, the Defendants have started constructing house in a portion of the suit property which is contiguous to the Panchayat Road connecting Kilapalayam on one side and Rasipuram Main Road on the other side. On 7.8.1995, the Plaintiff objected to the construction, on the ground that no structure, of a permanent nature, should be put up in an undivided property. There are two wells in the suit property. The Plaintiff has 1/4th share while the remaining 3/4th share belongs to the Defendant. The suit items 1 to 5 are to be divided into two equal shares and items 6 and 7 into four equal shares and one such share is to be allotted to the Plaintiff. Hence the Plaintiff has filed the suit for partition and separate possession and also for Permanent Injunction restraining the Defendants from in any way raising or continuing to raise any permanent structure. 3. The Defendants have filed the Written Statement contending that the Plaintiff is a purchaser only to a definite extent from one Pavayee under a registered Sale Deed dated 29.11.1975. The Plaintiff is entitled only to the portion as enjoyed by his vendor Pavayee. If the Plaintiff is aggrieved by endorsing him in the patta, the Plaintiff must institute a suit for declaration of his right. The Plaintiff is a stranger to the suit property and the Defendant's family. The Plaintiff is entitled only to the portion as enjoyed by his vendor Pavayee. If the Plaintiff is aggrieved by endorsing him in the patta, the Plaintiff must institute a suit for declaration of his right. The Plaintiff is a stranger to the suit property and the Defendant's family. There is no joint enjoyment of the property by the Plaintiff and Nanjappa Gounder at any point of time. The Defendant's husband Nanjappa Gounder purchased the lands from Karuppa Gounder and others by a Sale Deed dated 15.3.1973. Kailasa Gounder, father of Nanjappa Gounder had purchased 1/2 of the property under a Registered Sale Deed on 20.3.1937. From the date of purchase, Kailasa Gounder and his son Nanjappa Gounder and the Defendants have been in open and continuous possession of the properties. The Defendants have perfected their title by adverse possession, by enjoying the same for more than the statutory period. Even if the Plaintiff has got any right, the same has been lost by non exercising any right in the suit property. Nanjappa Gounder made improvements in the property by removing the rocks and levelling the lands and also deepening the well in Suit S.No.102/5. Prior to the installation of electric motor pump set and obtaining electricity Service Connection, the Defendants and their father Nanjappa Gounder have also installed a oil engine in the well in S.No.102/5 and well in S.No.102/6 and the Plaintiff is not entitled to the relief of partition and Permanent Injunction. 4.I.A.No.427/2003:- After the Written Statement has been filed, the Plaintiff has filed this application to receive the Reply Statement. Case was posted on 7.3.2003 for filing the Reply Statement. According to the Plaintiff, due to some domestic problem, he could not file the Reply Statement on 7.3.2003. As his counsel was also having personal inconvenience, he was able to contact his counsel only on 9.3.2003 and he has filed Reply Statement on 12.3.2003. The Plaintiff has prayed to receive the Reply Statement. 5. Application to receive the Reply Statement was resisted by the Respondents/Defendants contending that the Petitioner has suppressed the material facts in the Plaint and therefore, Reply Statement filed later cannot be received. It was contended that the Plaintiff has introduced new theory by giving certain amplifications to the plaint averments. The Plaintiff has prayed to receive the Reply Statement. 5. Application to receive the Reply Statement was resisted by the Respondents/Defendants contending that the Petitioner has suppressed the material facts in the Plaint and therefore, Reply Statement filed later cannot be received. It was contended that the Plaintiff has introduced new theory by giving certain amplifications to the plaint averments. No pleading except by way of amendment shall be received, which is inconsistent with the previous pleadings and thus objected to the receiving of the Reply Statement. 6. Declining to receive the Reply Statement the learned District Munsif has dismissed the application mainly on the ground that the petition has been filed under section 151 CPC and not under the proper provision (Or.8 R.9 CPC). Further, referring to the earlier order in I.A.No.1046/1995 and CMA No.3/1996, the learned District Munsif found that the averments in the Reply Statement are inconsistent. 7. The learned District Munsif dismissed the application finding : 8. Aggrieved over the dismissal of the application to receive the Written Statement, the Plaintiff has preferred this revision petition. The learned counsel for the Revision Petitioner has submitted that when there is no specific provision in the Civil Procedure Code to file Reply Statement, provision under Or.8 R.9 is to be invoked to file additional Written Statement or Reply Statement. It is submitted that quoting of wrong provision is not a ground to reject the relief. Placing reliance upon the decisions 2005 (1)CTC 540 ; 2001 (2) CTC 203 ; 2002(1) CTC 137, the learned counsel has further submitted that in the absence of any specific provision under the Code, inherent powers of the Court could be invoked under Section 151 CPC. It is submitted that the Reply Statement has been filed within a period of 24 days, after the filing of the Written Statement. The learned District Munsif was not right in dismissing the petition to receive the Reply Statement. 9. Countering the arguments, the learned counsel for the Respondent has drawn the attention of the Court to the averments in the Reply Statement and has contended that the averments in the Reply Statement introduces a new case. The learned District Munsif was not right in dismissing the petition to receive the Reply Statement. 9. Countering the arguments, the learned counsel for the Respondent has drawn the attention of the Court to the averments in the Reply Statement and has contended that the averments in the Reply Statement introduces a new case. The learned counsel has further submitted that by such averments in the Reply Statement, the Plaintiff only seeks to introduce new case which almost amounts to amending the plaint, which has been rightly declined by the Court below and that there is no reason warranting interference. 10. In dismissing the petition to receive the Reply Statement on the ground that the petition has been filed under section 151 CPC invoking the inherent powers of the Court, whether there is proper exercise of discretion and whether the impugned order suffers from material irregularity warranting interference, are the points that arise for consideration in this revision ? 11. After the amendment to the CPC (with effect from 1.7.2002) Or.8 R.9 reads :- Subsequent Pleadings. No pleading subsequent to the Written Statement of a Defendant other than by way of defence to set off or counter-claim shall be presented excepted by the leave of the Court and upon such terms as the Court thinks fit: but he Court may at any time require a Written Statement or additional Written Statement from any of the parties and fix a time of not more than thirty days for presenting the same." The rule 9 which was omitted by the CPC (Amendment) Act, 1999 (46 of 1999) has been restored by CPC (Amendment) Act 2002 (22 of 2002) in the same form verbatim except for the addition of the words "of not more than thirty days" after the words "and fix a time" and before the words "for presenting the same" appearing at the end of the rule. The effect of the change is that subsequent pleadings shall be continued to be filed and the Court shall fix time for presenting the same, which shall be not more than thirty days. 12. The Written Statement has been filed on 16.2.2003. As per the amended provision, the Plaintiff could file Written Statement, if any, before thirty days. Accordingly, time was granted to the Plaintiff to file Reply Statement by 7.3.2003. 12. The Written Statement has been filed on 16.2.2003. As per the amended provision, the Plaintiff could file Written Statement, if any, before thirty days. Accordingly, time was granted to the Plaintiff to file Reply Statement by 7.3.2003. But the Plaintiff has not filed the Reply Statement on 7.3.2003; but has filed the same on 12.3.2003 expressing inability of his counsel. The Petitioner has prayed to receive the Reply Statement by filing the amendment Application. It is to be stated that the Court has no power beyond thirty days to receive the Reply Statement. In this case, Reply Statement has been filed within time, i.e. on 12.3.2003. No doubt, the petition to receive the Reply Statement was filed invoking the inherent powers of the Court under section 151 CPC. The petition ought to have been filed under Or.8 R.9 CPC. But the omission to quote Or.8 R.9 CPC cannot be the reason to decline the permission to file the Written Statement. 13. Whether the filing of the petition under section 151 CPC alone would dis-entitle the Petitioner from claiming relief is the main point for consideration. 14. It is well established principle that inherent power is vested with the Court to do substantial justice. Sec.151 is nothing but the legislative recognition that every Court has inherent power to act exdebito justitiae to do that real and substantial justice for the administration of justice, for which alone it exists or to prevent the abuse of process of Court. Invoking of the inherent power under section 151 CPC is to secure the ends of justice. 15. Inherent power under section 151 CPC is complementary to the powers conferred on the Court. At this juncture, we may usefully refer to the decision reported in AIR 1966 SC 1899 (Ramchand & C.V.Kanhayalal) it has been held :- "The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, that give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. If there are express provisions exhaustively covering a particular topic, that give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the CPC they do not control the undoubted power of the Court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court." 16. The same principle has been reiterated in AIR 1961 SC 218 . The said decision of the Supreme Court has been quoted by this Court in the decision reported in 2005 1 CTC 540 . 17. Elaborating the nature of the powers under section 151 CPC in AIR 1970 SC 997 (Nainsingh Vs.Koonwarjee), it has been held thus: "Under the inherent power of Courts recognized by S.151 CPC a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. Further the powers under S.151 of the Code cannot be exercised as an appellate power. 18. The inherent powers of this Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Code. They are not intended to enable a Court to create rights in the parties, but they are meant to enable the Court to pass such orders for the ends of justice as may be necessary, considering the rights which are conferred upon the parties by substantive law. But it must always be remembered that there is no room for the application of the inherent power where there is not only an express provision in the Code but an express provision negativing the claim of the party. Thus it has been consistently held that where there is no specific provision in Code of Procedure Code to file the application, inherent powers could be invoked. 19. Let us examine the case in hand. It not as if filing of the Reply Statement is prohibited. Or.8 R.9 enables filing of the Additional pleadings subsequent to the filing of the Written Statement. 19. Let us examine the case in hand. It not as if filing of the Reply Statement is prohibited. Or.8 R.9 enables filing of the Additional pleadings subsequent to the filing of the Written Statement. After the amendment of the CPC, all that is specified is that such additional pleadings are to be filed within thirty days. As noted earlier, Written Statement has been filed on 16.2.2003. The Reply Statement ought to have been filed before 16.3.2003. For filing of the Reply Statement, case has been adjourned to 7.3.203. It is stated that due to the inconvenience of the counsel and other domestic reasons, the Plaintiff could not file the Reply Statement on 7.3.2003. But the fact remains that the Plaintiff has filed the Reply Statement on 12.3.2003 along with application in I.A.No.427/2003 to receive the Reply Statement. It is not as if there is inordinate delay in filing the Reply Statement. The Reply Statement having been filed within the stipulated time of thirty days, the trial Court ought to have allowed the application permitting the Plaintiff to file the Reply Statement. 20. The Plaintiff would have done better had the application been filed under Or.8 R.9 CPC r/w Sec.151 CPC. The omission to quote Or.8 R.9 CPC would not in any way prevent the Court from rendering substantial justice. The Court below ought to have invoked the inherent jurisdiction. Misquoting of the provision or omission to quote the proper provision cannot be the embargo to grant the relief. 21. Ordinarily the pleadings end with the Defendant's Written Statement and (in the case of a plea of set-off or counter-claim) with the filing of Plaintiff's Written Statement in reply. Under this rule, Petitioner or Defendant is not entitled to file thereafter any supplementary Written Statement except with the leave of the Court. 22. The Object of Or.8 R.9 CPC is to enable the Plaintiff/Defendant to file the Reply Statement meeting the defence. Generally, it is not incumbent upon the Plaintiff to file the Reply Statement meeting the defence. However, it is open to the party to put forth the Reply Statement explaining the facts and circumstances of the case thereby, meeting the defence. Earlier in the plaint, the Plaintiff has m erely stated that the suit properties S.No.102/2 and 102/6 and other items have stood jointly in the names of the Plaintiff and Nanjappa Gounder (father of the Defendant). Earlier in the plaint, the Plaintiff has m erely stated that the suit properties S.No.102/2 and 102/6 and other items have stood jointly in the names of the Plaintiff and Nanjappa Gounder (father of the Defendant). The Plaintiff has further averred that with the intervention of the mediators and with the help of Village Administrative Officer, they were able to divide the properties by metes and bounds, by planting stones which are said to have been removed by the Defendants. The Defendants have filed the Written Statement alleging that the Plaintiff is a total stranger to the suit property. In view of such denial of the Plaintiff's right and title in the suit property, to meeting the defence, perhaps it has become necessary for the Plaintiff to file the Reply Statement. In the Reply Statement, the Plaintiff has traced his title as to how he has purchased the property from Pavayee. In Reply Statement the Plaintiff has further averred that the Plaintiff's father's name is Chinna Gounder. Chinna Gounder's elder brother is Karuppa Gounder, who is the predecessor of the Defendants. According to the Plaintiff, from Karuppa Gounder and his family members, the Defendants have purchased the property under the Sale Deed dated 15.3.1973. Further case of the Plaintiff is that in the Sale Deeds executed in favour of both the Plaintiff and the Defendants' father Nanjappa Gounder, two Survey Numbers viz., S.Nos.102/2 and 102/6 were omitted at the time of sale. But the tile and possession were handed over to the Plaintiff and the father of the Defendants. The elaborate averments in the Reply Statement only goes to elaborate the earlier title set forth by the Plaintiff. 23. Taking serious objection to the averments in the Reply Statement, the learned counsel for the Respondent has submitted that by the averments in the Reply Statement, the Plaintiff seeks to introduce a new case. It is further submitted that for such averments in the Reply Statement, no basis has been made out for the Plaintiff to seek for partition in the suit properties. The submissions made on behalf of the Respondent is only argumentative, and the same has to be determined only after the trial stage after the parties adduce evidence. It would be too premature to express any view on the merits of the contentions advanced by the Respondents. 24. It is said that O.S.No.293/1995 was earlier dismissed for default. The submissions made on behalf of the Respondent is only argumentative, and the same has to be determined only after the trial stage after the parties adduce evidence. It would be too premature to express any view on the merits of the contentions advanced by the Respondents. 24. It is said that O.S.No.293/1995 was earlier dismissed for default. The Plaintiff has filed I.A.No.858/ 2003 to restore the suits. That application was allowed on payment of cost on 16.2.2003. Challenging that order made in I.A.No.858/2003, the Respondents/Defendants have filed C.R.P.No.1518/2004 and the CRP was dismissed. As on date, the suit O.S.No.293/1995 has been ordered to be restored. This being the position, the Plaintiff has to be given an opportunity to file the Reply Statement meeting the defence. 25. The lower Court has not properly exercised its discretion. It has acted on wrong principle stating that the Plaintiff has invoked the inherent jurisdiction without filing the application under proper provision of law. Order of the lower Court suffers from serious infirmity and material irregularity and the same is to be set aside. 26. For the reasons stated above, this revision petition is allowed. Reply Statement filed by the Plaintiff is ordered to be received. If necessitated, on proper application being filed, the Defendant may be given opportunity to file additional Written Statement, if any. In the circumstances of the case, there is no order as to costs. C.M.P.No.5993 of 2003 is closed. 27. Since the suit is of the year 1995, the trial Court is directed to expedite the trial.