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2007 DIGILAW 1035 (MAD)

S. Suresh v. Sivabalakannan

2007-03-22

S.RAJESWARAN

body2007
Judgment :- 1. The present Civil Revision Petition has been filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order in I.A. No.62 of 2005 in O.S. No.61 of 2003 on the file of the Principal District Munsif Court, Manamadurai. 2. The defendants in O.S. No.61 of 2003 is the revision petitioner. 3. The respondents herein tiled O.S. No.61 of 2003 against the revision petitioner for a permanent injunction restraining the defendant in the Suit from interfering with their peaceful possession and enjoyment of the Suit schedule property which was settled on them by their mother by a deed of settlement dated 10.5.2000. 4. The revision petitioner as defendant filed a written statement dated 19.4.2004 contending that the settlement deed is a created document and he purchased the suit property from one Ramalingam, who is the son-in-law of the mother of the plaintiffs. 5. Pending Suit the revision petitioner filed I.A. No.62 of 2005 to file additional written statement and the same was dismissed by the Trial Court on 24.6.2005 and aggrieved by the same the above Civil Revision Petition has been filed under Article 227 of the Constitution of India. 6. Heard the learned counsel for the petitioner and the learned counsel for the respondents. I have also gone through the documents and the judgments referred to by then in support of their submissions. 7. The learned counsel for the petitioner submitted that Courts should be liberal in receiving the additional written statement and taking an in-consistent plea in the additional written statement cannot be held against a party who wants to file additional written statement. He relied on the decisions of this Court reported in Subramanian and three others v. Javaraman, 1999 (3) CTC 52 , and Sivagnanamoorthy v. M. Shanmugam, 2003 (3) CTC 705 : 2003 (3) LW 617 , in support of his submissions. 8. The learned counsel for the respondents submitted that Courts should not permit the party to take mutually destructive plea in the additional written statement and he placed his reliance on the decisions reported in Devanbu v. Sundara Raj and others, 2005 (1) CTC 563 and R.S. Nagarajan v. R.S. Gopalan and others, 2007 (1) CTC 586 . 9. I have considered the rival submissions carefully with regards to facts and citations. 10. 9. I have considered the rival submissions carefully with regards to facts and citations. 10. Order 8, Rule 9, C.P.C. deals with the filing of subsequent pleadings by a defendant in the Suit. Order 8, Rule 9 reads as under: "No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court 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." 11. A perusal of Rule 9, Order 8 makes it very clear that if the defendant wants to plea subsequently after filing written statement, he has to get the leave of the Court and if the Court thinks it fit to get subsequent pleadings it can always ask the parties to file a written statement within a time fixed by the Court. 12. In Subramanian and three others v. Jayaraman, 1999 (3) CTC 52 , this Court held that the Court should have a lineant view for granting leave under Order 8, Rule 9 and the leave is to be rejected only when the defendant introduces an entirely a different case. The relevant portion of the judgment reads as under: 9. It is not the intention of the legislature that no pleading subsequent to the written statement should be allowed other than for reasons given therein. But the intention is that without the leave of the Court, no pleading subsequent to the written statement shall be presented. Hence, it goes without saying that the subsequent statement or additional statement could be filed only with the leave of the Court on such terms, as the Court thinks fit. The approach of law in permitting the Court to grant leave in such cases is positive. But, the Court while granting the leave could direct the petitioner to comply with certain terms that the Court thinks fit and hence absolutely there is no impediment or hurdle or legal barrier putforth by the Rule in allowing any additional statement subsequent to the written statement and the only shot provided in the arms of the Court for granting leave is that it could allow the Application on such terms as it thinks fit. The same power could also be suo mow exercised by the Court as per the concluding part of the Rule. The Rule has been liberally construed so far as the Court granting the leave to present such additional statement and discretion is given to the Court either to allow or to reject and while allowing it could do the same on such terms as the Court thinks fit. Therefore, it could be safely concluded that in all such cases, wherein the defendant approaches the Court with an Application under Order 8. Rule 9, of the Civil Procedure Code praying to grant leave, Courts are expected to be liberal in granting the leave but of course on terms as the Court thinks fit in the circumstances of the individual case. 10. The lower Court itself has shown as to when the Court could reject the plea of the defendant in its order, citing the judgment reported in AIR 1977 SC 680 wherein it is held that; "..... by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted, it would prejudice the other side." What is to be decided, in the light of the above proposition of the Apex Court, by the Court dealing with the subject is to find out whether the defendant wants to introduce an entirely different case so as to prejudice the other side, provided he is permitted to carry out the amendments. 11. So far as the order of the lower Court is concerned, it is remarked that the additional written statement sought to be filed is quite contradictory to the earlier statement filed by the petitioners/defendants and further since the petitioners have not filed any objection to the Commissioners Report, they are not entitled to be granted with the leave to present the additional statement as sought for in the Petition and thus dismissed the Petition filed by the petitioners/defendants. However, the requirements of the Rule and the proposition of Law held in the case cited supra are that the Court should take a leniant view in granting leave and if need be the leave could be granted on terms and that if the defendants introduce an entirely different case in the additional statement, so as to prejudice the other side, their Application for leave is liable for rejection. 12. 12. In answering these two points, the lower Court does not seem to have taken a liberal view with a positive approach as warranted by the Rule nor has the lower Court established as to how the petitioners wanting to introduce an entirely different case so as to cause prejudice to the other side. The vague reasons given by the lower Court that the additional written statement sought to be filed is quietr contradictory to the earlier statement and that the petitioners have not filed any objections to the Commissioners Report, are not the sufficient reasons or explanations sought for either by the Rule or by the proposition of the Apex Court. After all, on completion of every formality including such as one sought to be introduced by means of an additional written statement by the petitioners/defendants, ultimately on a fair trial, affording with adequate opportunities for both parties to he heard in full, the Suit is going to be decided by the Trial Court on merits and on available evidence. While so, refusing to grant leave for presenting an additional written statement is nothing short of denial of an opportunity for the petitioners/defendant to exhaust their remedy. The defendants having failed to plead those sought to be introduced in their original statement, have now come for amending their statement and it is the hallmark or exception of law that the trial should he held on all issues involved in the Suit and with full opportunity for parties to exhaust their remedies. In the present case, moreover, the seriously objected portion of the additional written statement being the plead of res judicata and estoppel, both of which are quite legal, it is not reasonable to deny the petitioners from resorting to such legal questions, for the defendants in their considered opinion, however at a later stage, after filing of the written statement strongly feel that they could have recourse to such legal aspects. At the best, in the above circumstance, what the lower Court could have done is that it could have allowed the Application of the petitioners/defendants on such terms as contemplated by the Rule since certain amount of hardship and inconvenience have been caused to the respondent/plaintiff." 13. At the best, in the above circumstance, what the lower Court could have done is that it could have allowed the Application of the petitioners/defendants on such terms as contemplated by the Rule since certain amount of hardship and inconvenience have been caused to the respondent/plaintiff." 13. In Sivagnanamoorthy v. M. Shanmugam, 2003 (3) CTC 705 : 2003 (3) LW 617 , this Court held that the defendant can raise in constitent plea and the defendant cannot take a stand which is altogether a different case than the one set out in the original written statement: "It is no doubt true that the appellant/defendant can raise inconsistent plea. But the Courts have held that defendant should not be allowed to take a different plea, which is mutually destructive, and if it is allowed, it would amount to permitting the defendant to withdraw the averments allegedly made by his in the original written statement. In this case, as set out earlier, the appellant/defendant himself prayed for partition of half share in the suit properties and he came forward with the plea that the respondent/plaintiff is in possession of the I item of the suit properties and so the defendant is not liable to pay any damages as claimed by the plaintiff. Without even amending the said plea, by way of additional written statement, the appellant/defendant has come forward with contradictory allegations, causing irretrievable prejudice to the respondent/plaintiff Before the Courts below, two different pleas raised by the appellant/defendant are on record. That is, the plea raised earlier in the original written statement by the defendant is also on record in tact. So the Courts below cannot ignore the same. The new plea was not taken by way of amendment erasing the earlier plea, but by way of additional written statement, keeping the earlier plea taken by the defendant also on record. Such a plea taken even though by way of amendment, if it is destructive in nature and results in defeating a legal right accrued to the plaintiff, it cannot be allowed. The stand taken by the defendant in the additional written statement cannot be simply construed as an inconsistent plea or an alternative plea. It is altogether a different case than the one set out is the original written statement. The stand taken by the defendant in the additional written statement cannot be simply construed as an inconsistent plea or an alternative plea. It is altogether a different case than the one set out is the original written statement. So, the Trial Court should not have relied on the aid additional written statement to reject the case of the plaintiff that he is not entitled to sustain the Suit for partition. 14. In Devanbu v. Sundara Raj and others, 2005 (1) CTC 563 , this Court held as follows: 7. "The plaintiff has come forward with the Suit O.S. No.439 of 1999 for declaration and for permanent injunction in respect of the suit properties which are six items in Senji village, Thiruvallur Taluk mentioning the new survey members with the old paimash numbers. The Suit was filed in the year 1999. Though the defendants took time and filed the written statement only event the plaintiff had perfected title to the suit property by adverse possession, no plea has been taken in the written statement filed by the defendants that in the earlier Suit in O.S. Nos.177 of 1982. 201 of 1983 and 355 of 1987 such a plea was not taken by the plaintiff and as such, the present Suit is barred by res judicata. In that view, the defendants cannot be allowed to raise such a plea by filing additional written statement. 8. As regards the stand taken by the defendants that the properties, subject matter of the partition Suit in O.S. No.318 of 1983 of 1963, were amended by giving new survey numbers as per order in I.A. No.740 of 1965, the first defendant in the sale deeds conveyed by his of the amendments 2 to 4 has failed to given the new survey numbers and only survey numbers have been mentioned in the sale deeds. The said facts, according to the defendants, have been mentioned in the counter tiled in I.A. No.274 of 1999. If really, the mistakes have crept-in and old survey numbers alone have been mentioned in the sale deeds executed by the first defendant in favour of the defendants 2 to 4, it is open to the parties concerned to the said sale deeds to take necessary steps for rectification of the said sale deeds. The defendants have to contest the present Suit with the stand and plea already taken in the written statement. The defendants have to contest the present Suit with the stand and plea already taken in the written statement. Though when the defendants filed written statement, the plea of res judicata was available to them, but they failed to take such a stead in the written statement. Therefore, such plea is deemed to have been waived. How, it is not open to the defendants to file additional written statement mentioning the facts that the first defendant failed to mention the new survey numbers in the sale deeds executed by his in favour of the defendants 2 to 4, which according to him, have been stated in the counter filed in I.A. No.274 of 1999." 15. InR.S. Nagarajan v. R.S. Gopalan and others, 2007 (1) CTC 586 , this Court held that the defendant cannot raise mutually destructive pleas nor he can introduce altogether a new case by way of filing an additional written statement. 16. From the above decisions, it is very clear that leave to file additional written statement is to be granted liberally except when the defendant raises a mutually destructive pleas and when he tries to introduce altogether a new case. 17. Now let us consider, whether the revision petitioner raised a mutually destructive plea or he tried to raise a new case altogether by filing the additional written statement for which he sought the leave of the Court in I.A. No.62 of 2005. 18. In the additional written statement, the revision petitioner stated that he purchased the suit schedule property from one Rahini by a sale deed dated 17.4.2000 and the said Rahini filed O.S. No.90 of 2000 against one Poonalagu and in that Suit the first respondent herein (first plaintiff in the Suit was examined as a witness on the side of the said Poonalagu and his evidence was rejected by the Court in O.S. No.90 of 2000. Similarly the first respondent herein deposed as a witness in O.S. No.108 of 2000 and in that Suit also, the first respondents evidence was not accepted by the Court. The revision petitioner wanted to plea the above narrated averments only by way of subsequent pleading to contend that the case of the first respondent as first plaintiff in the present Suit was already pleaded by him as a witness in two earlier Suits and the Courts did not accept his evidence. 19. The revision petitioner wanted to plea the above narrated averments only by way of subsequent pleading to contend that the case of the first respondent as first plaintiff in the present Suit was already pleaded by him as a witness in two earlier Suits and the Courts did not accept his evidence. 19. Reading of the additional statement makes it very clear that the revision petitioner only wants to explain the case further by subsequent pleadings and the subsequent pleadings are in fact in consonence with his earlier pleading. It cannot be said that be raised a mutually destructive plea nor it can be said that altogether a new case was put forward by him in the subsequent pleadings. 20. In such circumstances, the Court below ought to have adopted a liberal approach in granting the leave to file additional written statement. 21. Hence, I am inclined to interfere with the order of the Court below and the same is set aside. The Trial Court is directed to take the additional written statement filed by the revision petitioner on file and proceed with the trial in accordance with law. 22. However, the revision petitioner is directed to pay a sum of Rs.1,000/-to the learned counsel for the respondents herein by way of costs within a period of three weeks from the date of receipt of a copy of this order, failing which the additional written statement is to be struck off from its file by the Trial Court. 23. In the result, the Civil Revision Petition is allowed with the above direction. No costs. Consequently connected M.P. Nos. are also closed.