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2009 DIGILAW 189 (MAD)

B. Sasikumar & Others v. M. Gangadharan & Another

2009-01-20

M.VENUGOPAL

body2009
Judgment :- The revision petitioners/Petitioners/Plaintiffs filed this civil revision petition as against the order in I.A.No.278 of 2005 in O.S.No.264 of 2005 dated 010. 2005 passed by the District Munsif, Ranipet in dismissing the application praying for amendment of plaint in respect of the suit schedule property under Order 6 Rule 17 of C.P.C. 2. The trial Court while passing order in I.A.No.278 of 2005 has come to a conclusion that the arguments on the side of the respondents/Defendants were over and at that time, I.A.No.278 of 2005 has been filed by the revision petitioners/Plaintiffs praying to amend the suit schedule Survey Number as Punja Survey No.145/5 instead of Nanja Parimash No.39 and as such the same cannot be allowed and resultantly, dismissed the application. 3. According to the learned counsel for the revision petitioners/Petitioners/Plaintiffs, the order of the trial Court in dismissing the Interlocutory Application praying for amendment of the plaint schedule property is not correct in the eye of law and that the trial court has failed to appreciate the fact that an inadvertent mistake has crept in the plaint while mentioning the survey number and therefore in the interest of justice, the trial Court ought to have allowed the I.A.No.278 of 2005 and further by allowing the I.A.No.278 of 2005 for amendment of plaint, the same does not require for letting of fresh evidence and no party will be affected if the amendment is allowed and further by allowing the amendment application, the cause of action for the suit will not change and therefore prays for allowing the civil revision petition in the interest of justice. 4. Contending contra, the learned counsel for the respondents submit that before the trial court, arguments have been advanced on the side of the respondents/Defendants and at that stage, the revision petitioners/Plaintiffs have projected the I.A.No.278 of 2005 praying for amendment of plaint in regard to the suit schedule and this cannot be permitted in law, inasmuch as the right accrued to a party cannot be erased or displaced by other side by projecting the said amendment application. Added further, the learned counsel for the respondents contends that even the survey number now presently mentioned as Punjai Survey No.145/5 in the plaint is a different survey number and the same is not anyway connected with the plaint schedule property. 5. Added further, the learned counsel for the respondents contends that even the survey number now presently mentioned as Punjai Survey No.145/5 in the plaint is a different survey number and the same is not anyway connected with the plaint schedule property. 5. Be that as it may, on a careful consideration of the respective contentions, this Court is of the considered view that when the arguments on the side of the respondents/defendants have been over before the trial court, at a belated stage, the revision petitioners/Plaintiffs cannot project the interlocutory application praying for an amendment of the plaint schedule property and if the same is allowed by this court, thus a valuable right accrued to a party will be erased or displaced in a single stroke. In that view of the matter, the civil revision fails and the same is dismissed. 6. In the result, the civil revision petition is dismissed leaving the parties to bear their own costs. The order of the trial court passed in I.A.No.278 of 2005 is affirmed for the reasons assigned in this revision. Since the matter is pending before the trial court from 010. 2005 at the stage of the arguments, this Court more of prudent course directs the trial court to dispose of O.S.No.264 of 2005 within a period of 3 months from the date of receipt of a copy of this order and to report compliance to the Registry without fail. However, the parties are directed to lend their cooperation in regard to the completion of the proceedings. The connected miscellaneous petition is closed. Crp 1832/05 The Revision petitioner/12th defendant has projected the civil revision petition as against the order in I.A.No.1641 of 2005 in O.S.No.278 of 2003 passed by the Additional District Munsif, Namakkal in dismissing the application filed by the petitioner under Order 8 Rule 9 and Section 151 of Civil Procedure Code. 2.The trial Court while passing order in I.A.No.1641 of 2005has inter alia held that "other defendants have mentioned the details projected by the revision petitioner in their additional written statement and as such the plea of the revision petitioner in regard to the filing of his additional written statement cannot be accepted and further that the documents have been filed and that the witnesses have been examined and resultantly dismissed the application. The learned counsel for the revision petitioner/12th Defendant urges before this Court that the order of the trial Court in dismissing the I.A.No.1641 of 2005 is without jurisdiction and contrary to law and that the trial court has not appreciated the fact that the revision petitioner/12th Defendant has adopted the written statement filed by D1 and D11 and further the D1 and D11 have also filed the additional written statement raising additional contentions and in fact only the same contentions are raised by the revision petitioner/12th Defendant in the additional written statement of D1 and D11 and therefore the trial Court ought to have allowed the I.A.No.1641 of 2005 and moreover the trial Court has committed an error in not appreciating the fact that the filing of the additional written statement filed by the revision petitioner will not involve raising of new issues requiring any additional evidence and the rule of pleading is that an issue cannot be raised by a party without a plea in that regard and this crucial aspect of the matter has not been looked into by the trial court in proper perspective and by allowing the I.A.No.1641 of 2005 no prejudice would be caused to the plaintiffs and therefore prays for allowing the civil revision petition to prevent the aberration of justice. In support of the contention that the revision petitioner must be given an opportunity to raise legal questions, the learned counsel for the revision petitioner/12th Defendant cites the decision Subramanian and others Vs Jayaraman (1999) 3 M.L.J at page 216 wherein this Court has inter alia held that "only if the defendants introduced entirely different case in additional written statement so as to prejudice the other side, their application liable to be rejected and therefore it is not reasonable to deny the petitioner and ... to raise legal questions, etc.," He also brings it to the notice of this Court another decision M.Than Pillai ..(2001) 2 M.L.J. At page Nos.36 and 37 wherein this Court has observed that "in the case on hand the respondent admitted to reinforce what has been stated in the original written statement by furnishing the details about the suit property , the unfortunately the petitioner omitted to ...ought to have done. In such circumstances, it cannot be held that the respondent was to plead a different case than what has been pleaded in the original written statement in those circumstances, the permitting filing additional written statement cannot be found fault with." Contending contra, the learned counsel for the respondents submit that almost all the other defendants have adopted the statement of D1 and D11 and that the additional written statement of D1 and D11 have been accepted by the trial Court and the averment of the revision petitioner/12th Defendant in his additional written statement to the effect that the channel in entirety on the lower side in survey number runs in his land has already been made mentioned of in the additional written statement of D1 and D11 in a way that the respective survey numbers do belong to the respective owners in their own right and therefore the trial court has perfectly correct in dismissing the I.A.No.1641 of 2005 filed by the revision petitioner/12th Defendant and this court sitting in revision at this stage need not interfere with the order passed. Countering the contentions of the respondent/Plaintiff, the learned counsel for the revision petitioner submits that when the other defendants namely D1 and D11 have filed her additional written statement and the same have been accepted by the trial Court then in the additional written statement of the revision petitioner is only trying to explain the same stand taken by other defendants emphasised the same in a different way and therefore by allowing the application no prejudice or hardship will be caused to the respondents/Plaintiffs herein. A perusal of the additional written statement of the revision petitioner/12th Defendant do clearly indicate that a plea is also taken that the land owners were the channel runs are also necessary parties and therefore the suit is liable to be dismissed for non joinder of necessary parties. Further the revision petitioner has also taken a plea that O.S.No.1225 of 2004 has been filed for permanent injunction which has been decreed and as against the said judgment and decree the appeal has been preferred and therefore on the basis of the said Judgment and decree, the Plaintiffs are not entitled for relief in asmuch as the present suit has been filed praying for the relief of declaration. It is emphatic fact an additional written statement must not set up a totally a new case or state facts at .... with the original written statement filed so as to comprehensively or completely changed the issues involved in the case. As a matter of fact, the second part of Order 8 Rule 9 enjoins that the Court of law at any time may require a written statement or additional written statement. It must be borne in mind the second part of the rule does not confer any right on a party to file written statement or additional written statement. However they can do so only on being "required by the Court". As far as the present case is concerned, the revision petitioner/12th Defendant has to let in evidence on his side before the trial Court in the conduct of the trial of the main case. The revision petitioner/12th Defendant has to enter into the box and put forward his case. On a careful consideration of the respective contentions, this Court is of the considered view that the revision petitioner/12th Defendant cannot be permitted to file his additional written statement considering the oral assessment of the facts and cumulative circumstances of the case and in that view of the matter, the civil revision petition fails and the same is hereby dismissed in the interest of justice. In the result, the civil revision petition is dismissed. The order passed by the trial Court in I.A.No. Is affirmed by this Court for the reasons assigned in this revision. However, liberty is given to the petitioner/12th Defendant to produce the best evidence on his side and in this regard, the trial Court shall permit the revision petitioner in the manner known to law. Since this Court is informed that the matter is pending in part heard stage before the trial Court from 110. 2005 this Court in the interest of justice directs the trial Court to dispose of the main case within a period of four months from the date of receipt of a copy of this order. The parties are directed to lend their cooperation to the trial Court in regard to the completion of the proceedings. The trial Court is directed to submit a report of compliance in regard to the disposal of the case within the timeframe fixed by this Court. The parties are directed to lend their cooperation to the trial Court in regard to the completion of the proceedings. The trial Court is directed to submit a report of compliance in regard to the disposal of the case within the timeframe fixed by this Court. In the result, the civil revision petition is dismissed leaving the parties to bear their own costs. The Civil revision petitioner/first respondent/first plaintiff has filed this present civil revision petition as against the Judgment dated 18.02.2008 in C.M.A.No.4 of 2006 passed by the Sub Judge, Hosur in allowing the civil miscellaneous appeal filed by R1 to R3 herein (R7 to R10). Before the trial Court namely the District Munsif Court, Hosur, the revision petitioner/first plaintiff has filed I.A.No.46 of 2006 praying for the relief of interim injunction under Order 39 Rule 1 of C.P.C. and after contest in the interlocutory application, both the petitioner and the respondents 1 to 6 therein have been ordered to maintain status quo till the disposal of the suit and resultantly, the application has been allowed without costs. 2.The trial Court while ordering the parties to maintain status quo has inter alia observed that on the strength of the agreement of sale Ex.A1 under part performance of contract, R7 claims to be in possession of the property, etc., 3. Aggrieved against the orders dated 28.04.2006 passed by the trial Court in I.A.No.46 of 2006, the respondents 1 to 4 herein/the respondents 7 to 10 in the Interlocutory Application have preferred C.M.A.No.4 of 2006 as appellants before the Sub Court, Hosur and the Appellate Authority has allowed C.M.A inter alia observing that the order of status quo to be maintained passed by the trial Court is not correct and resultantly, has set aside the order passed in I.A.No.46 of 2006 and allowed the appeal. Further, the learned Sub Judge has come to the conclusion that the defendants 7 to 10 after obtaining sale deed dated 20.01.2006, from 012. 2006 they have got patta transfer in their name and they are also in possession of the parent documents, old chitta and kist receipts and further they also filed Exs.B6 to B21 and Ex.B23 and have also constructed a godown and hand over the same to one Sivakumar etc., 4. 2006 they have got patta transfer in their name and they are also in possession of the parent documents, old chitta and kist receipts and further they also filed Exs.B6 to B21 and Ex.B23 and have also constructed a godown and hand over the same to one Sivakumar etc., 4. Admittedly, the suit has been filed by the plaintiffs before the trial Court praying for the relief of permanent injunction against the defendants and others restraining them from trespassing into the suit properties and also for the relief of permanent injunction restraining from alienating the suit properties etc., It is not in dispute that the order passed by the trial Court in regard to the status quo has been set aside by the learned Sub Judge, Hosur and thereby the C.M.A. has been allowed. 5. In view of the fact that the main suit itself in regard to the relief of permanent injunction and since the interim relief prayed for in I.A.No.46 of 2006 also is with regard to the relief of temporary injunction, this Court is of the considered view that the prayer in the main suit and the relief sought for in I.A.No.46 of 2006 are one and the same and since the third defendant has filed his written statement before the trial court, which has been adopted by the defendants 1, 2 and 4 to 6 and further in view of the fact that the written statement filed by D10 has been adopted by the defendants 7 to 9 wherein the plaintiffs claim has been disputed by the defendants, this Court is of the considered view that the parties are at liberty to thrash out all the disputes/controversies in the conduct of the main suit and in that view of the matter, this Court without expressing any opinion disposes of the civil revision petition with a direction to the trial court to dispose of the main suit within a period of three months from the date of receipt of a copy of this order. 6. In the result, the civil revision petition is disposed of directing the trial court to dispose of the main suit within a period of three months from the date of receipt of a copy of this order. 6. In the result, the civil revision petition is disposed of directing the trial court to dispose of the main suit within a period of three months from the date of receipt of a copy of this order. It is open to the parties to let in oral documentary evidences and they are also entitled to raise all factual and legal contentions before the trial court and that the trial court shall provide due opportunities to the parties and the parties are directed to cooperate with the trial in regard to the completion of the proceedings so that the disputes can be given the quietus once and for all. No costs. Consequently, the connected miscellaneous petitions are closed.