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2009 DIGILAW 5349 (MAD)

Sekar & Another v. A. N. Sengodagounde

2009-12-04

P.P.S.JANARTHANA RAJA

body2009
Judgment .2. The petitioners are the defendants and the respondent is the plaintiff in the suit. The respondent/plaintiff and his brothers jointly purchased large extent of properties. On 27.04.1960, by virtue of a registered partition deed they partitioned the entire properties owned by them jointly. At the time of enjoying entire properties, they formed number of cart tracks for better and convenient enjoyment of their entire properties. The suit property is one such cart track and the width of all the cart tracks detailed in the partition deed is 30 links. The respondent/plaintiff all along enjoying the cart track detailed in the plaint. The petitioners/defendants 1 and 2 are the grand sons of one of the brother viz.,Muniappa Gounder, of the plaintiff and the third defendant is the daughter in law of the Muniappa Gounder. The petitioners/defendants are also entitled to use the cart tracks. There was misunderstanding between the respondent/plaintiff and the petitioners/defendants. It was alleged that the petitioners/defendants with ulterior motive in order to give inconvenience and cause injury to the respondent/plaintiff, attempted to put up stone revetment encroaching a part of the suit cart track. In such circumstances, the respondent/plaintiff filed a suit in O.S.No.198 of 2000 of 2004 praying for permanent injunction restraining the defendants, their men, servants and agents from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit cart track to take his men, cart cattle and lorry through the same as a right of ingress and egress to reach his houses and other properties and in particular from encroaching any part of the suit property and put up stone revetment in the same and for costs. The petitioners/defendants filed a written statement on 25.07.2001 denying all the allegations and stated that the respondent/plaintiff is trying to encroach the major portion of cart track and trying to construct stone revetment on the edge of the cart track as detailed in the partition deed dated 27.04.1960. Subsequently, the petitioners/defendants filed a petition under Order VIII Rule 9 C.P.C. to grant leave to file additional written statement on the ground that the suit cart track runs through survey Nos.284/II and 285/1J and its other sub-divisions and no cart track was running in the southern part of survey No.284/6. But in the description of property it is mentioned that the suit cart track is running in Southern part of S.No.284/6. But in the description of property it is mentioned that the suit cart track is running in Southern part of S.No.284/6. As per recitals in the partition deed dated 27.04.1960, no cart track runs in S.No.284/6.Therefore the suit itself is not maintainable. The petitioners/defendants further contended that the above stated facts are accidentally omitted to state in the written statement filed earlier and also no such averment made in the body of the plaint as if cart track runs in S.No.284/6. After considering the facts and circumstances, the trial Court has dismissed the said I.A., on the ground that it was filed very belatedly and also it would cause prejudice to the respondent/plaintiff as the petitioners/defendants has not raised the present defence in the earlier written statement and also after filing proof affidavit and the examination of PW1 the petitioners/defendants filed the said I.A. Aggrieved by that order, the petitioner has filed the present civil revision petition. .3. The learned counsel appearing for the petitioners/defendants submitted that the trial .Court erred in dismissing the I.A filed by the petitioners/defendants seeking to grant leave to file additional written statement. He further submitted that the trial Court is wrong in holding that the petitioners/defendants are introducing a new case by way of additional written statement and also failed to appreciate that the petitioners/defendants had elucidated the recitals in the partition deed dated 24. 1960 which does not amount to introduce a new case. He further submitted that the trial Court ought to have looked into the nature of plea raised in the additional written statement and also the plea raised in the additional written statement is vital to decide the case and also the Court has discretionary power to admit the additional written statement and also relied on the decisions of the Apex Court in the case of SUSHIL KUMAR JAIN VS. MANOJ KUMAR AND ANOTHER reported in AIR 2009 Supreme Court 2544; OLYMPIC INDUSTRIES VS. MULLA HUSSAINY BHAI MULLA AKBERALLY AND OTHERS reported in (2009) 7 MLJ 1081(SC) and P.A.JAYALAKSHMI VS. H.SARADHA AND OTHERS reported in 2009 (4) CTC 201 and seeks to set aside the order passed by the trial Court. 4. The learned counsel appearing for the respondent/plaintiff submitted that the present interlocutory application is filed only with a view to drag on the trial in the suit and also to harass the respondent/plaintiff. H.SARADHA AND OTHERS reported in 2009 (4) CTC 201 and seeks to set aside the order passed by the trial Court. 4. The learned counsel appearing for the respondent/plaintiff submitted that the present interlocutory application is filed only with a view to drag on the trial in the suit and also to harass the respondent/plaintiff. He further submitted that the written statement was filed on 25.07.2001 and trial has commenced and PW1 was examined and later the present I.A. was filed on 09.09.2008, which is after a period of eight years. Therefore, considering the fact that the application to grant leave to file additional written statement was filed belatedly, the trial Court has correctly came to the conclusion and dismissed the I.A.No.1085 of 2008 and the order passed by the trial Court is in accordance with law and the same has to be confirmed. In support of his contention, he relied on the following decisions: .(1) Muthiah Mudaliar and others Vs. Dhandapani Mudaliar and aother ( 1986 (2) MLJ 403 ) .(2) Poongavanam Ammal Vs. Navaneetham Ammal (1999 MLJ (Supplement) 83); .(3) Devanbu Vs. Sundara Raj and others ( 2005 (1) CTC 563 ); and .(4) R.S.Nagarajan Vs. R.S.Goapalan and others ( 2007 (1) CTC 586 ). 5. Heard the learned counsel on either side and perused the materials available on record. The suit was filed on 20.10.2000. The respondent/plaintiff filed a suit for the relief of permanent injunction restraining the defendants from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit cart track. The petitioners/defendants also filed a written statement on 25.07.2001 stating that the suit cart track had been encroached by the respondent/plaintiff in Survey Nos.285/IJ and 285/II. It is also to be noted that the respondent/plaintiff has also filed a petition to receive the reply statement for the counter claim on 24.06.2000 and the same was also allowed by the trial Court. The petitioners/defendants had not filed any additional written statement for the same. It is also pertinent to note that the petitioners/defendants filed a petition for appointing the Commissioner to note down the physical features of existence of the suit cart track and the trial Court also permitted the same. The Commissioner served notice to the petitioners/defendants to visit the suit property on 26.08.2006 and on that date either the petitioners/ defendants or their counsel were present. The Commissioner served notice to the petitioners/defendants to visit the suit property on 26.08.2006 and on that date either the petitioners/ defendants or their counsel were present. The Commissioner has visited the suit property on 26.08.2006 and filed the report and plan noting the physical features of the suit cart track and the adjoining lands. Subsequently, the petitioners/defendants also served a memo to the Commissioner to revisit the property and the trial Court also allowed the same. Finally, the Commissioner has filed his report and plan on 22.01.2008. In the said report, the Commissioner had clearly mentioned that the suit cart track runs both in Survey No. 284/6 and also in Survey No.285/IF on the southern side in Survey No.284/6 to the extent of 0.89 meters on the western side and 2.25 meters on eastern side and the suit cart track runs 3.00 meters on western side and 2.00 meters on eastern side in S.No.285/1. At that time, the petitioners/defendants have not filed any objection for the Commissioners Report and plan. The petitioners/defendants were aware of the fact that the suit cart track runs in southern side of S.No.284/6 and it is clear from the above that because of this, the petitioners/defendants had not pleaded that in their earlier written statement that the suit cart track is not running in S.No.284/6. Only in the additional written statement it is stated that the suit cart track has been encroached by the respondent/plaintiff. The respondent/plaintiff has also filed a proof affidavit on 04.08.2004 and therefore, the petitioners/ defendants have sought adjournments on 18. 2008, 18. 2008 and 28. 2008 to cross-examine the PW1. On 05.09.2008, the petitioners/defendants have cross examined the respondent/plaintiff in full. After that, the petitioners/defendants filed the petition in I.A.No.1085 of 2008 in O.S.No.198 of 2000 to receive the additional written statement filed on 9.09.2008 after cross examination of PW1 with the intention to drag on the proceedings. 2008, 18. 2008 and 28. 2008 to cross-examine the PW1. On 05.09.2008, the petitioners/defendants have cross examined the respondent/plaintiff in full. After that, the petitioners/defendants filed the petition in I.A.No.1085 of 2008 in O.S.No.198 of 2000 to receive the additional written statement filed on 9.09.2008 after cross examination of PW1 with the intention to drag on the proceedings. The trial Court has considered all these facts and held that it is only the petitioners/defendants like to introduce totally a new case, which was not at all pleaded in the original written statement and further held that it will cause prejudice and hardship to the respondent/plaintiff and held as follows: "It has been further held that pleadings cannot be filed in piece meal and the petitioner will have to explain why the present contention was not raised in the original, written statement. In our case, as already stated, the written statement was filed as early as on 010. 2001 and after the cross examination of P.W.1 was over, the present application came to be filed. This Court is of the considered opinion that if, at this stage, the petitioners are permitted to file the present additional written statement, naturally, it would cause prejudice to the respondent. This Court is of the further opinion that no acceptable reason been set out in the affidavit filed in support of the present petition for not raising the present defence in the earlier written statement. Explanation offered by the petitioners that since, it was not specifically stated in the body of the plaint that the suit cart track run in S.No.284/6 also, the petitioners were precluded from raising a specific defence cannot be accepted because the description of property also is a part of the plaint. No other explanation has been stated by the petitioner and therefore, this Court concludes that the present application is devoid of merits." From the above, it is clear that one of the grounds taken by the petitioners/defendants is that the respondent/plaintiff has not stated in body of the plaint that the suit cart track runs in survey No.284/6. But in the schedule it is mentioned that the suit cart track runs in survey No.284/6. The description of the property also forms part of the plaint. But in the schedule it is mentioned that the suit cart track runs in survey No.284/6. The description of the property also forms part of the plaint. After considering the above facts and circumstances of the case, the trial Court has correctly come to the conclusion and rejected the petition filed to grant leave for filing additional written statement. The findings given by the trial Court is based on valid materials and evidence and it is a question of fact. It is not a perverse order. The scope of powers under Article 227 of the Constitution of India is considered by the Apex Court in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487 , wherein it has been held as follows: "32. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 33. In State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others this Court explained the power of the High Court under Article 227 thus: "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. And others and this Court held: "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." 6. In the case of of SUSHIL KUMAR JAIN VS. MANOJ KUMAR AND ANOTHER reported in AIR 2009 Supreme Court 2544, the Supreme Court considered the scope of amendment of pleadings under Order VI Rule 17 and held as follows: "10.At this stage, we may remind ourselves that law is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does snot raise the same problem as adding, altering, substituting a new cause of action(see Baldev Singh & Ors. Vs. Manohar Singh & anr. AIR 2006 SC 2832 ) 11. Similar view has also been expressed in Usha Balashaheb Swami & Ors. V. Kiran Appaso Swami * Ors. AIR 2007 SC 1663 . It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed. 14. Before parting with this judgment, a short submission as advanced by the learned counsel for the respondents may be dealt with. Referring to the proviso to Order 6 Rule 17 of the CPC, the learned counsel for the respondents argued that the proviso clearly bars that any application for amendment either of plaint or of written statement can be allowed after trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. Therefore, the learned counsel for the respondents submitted that in view of the proviso to Order 6, Rule 17 of the CPC, the High Court as well as the Rent Controller had acted within their jurisdiction in rejecting the application for amendment of the written statement on the ground that the trial has already commenced and, therefore, no interference can be made in respect of the same. 15. We are unable to agree with this submission of the learned counsel for the respondents. In this case, in our view, the trial has not yet commenced. In para 17, of Baldev Singh (supra), this Court observed:- "It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. In para 17, of Baldev Singh (supra), this Court observed:- "It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."" From the above facts, it is clear that the trial is yet to be commenced as in the present case, proof affidavit was filed by the respondent/plaintiff and PW1 was examined and cross examined and after a period of eight years, additional written statement was filed. The said judgment is not helpful to the petitioners/defendants. 7. In the case of OLYMPIC INDUSTRIES VS. MULLA HUSSAINY BHAI MULLA AKBERALLY AND OTHERS reported in (2009) 7 MLJ 1081(SC), the Apex Court has held that delay is no ground for dismissal of an application under Order VIII Rule 9 of CPC where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement. In that case, the reason was given for filing written statement belatedly. As in the present case, facts are different and after eight years, the additional written statement was filed and hence, this judgment is not helpful to the petitioners/defendants. 8. In the case of P.A.JAYALAKSHMI VS. H.SARADHA AND OTHERS reported in 2009 (4) CTC 201, the Apex Court has specifically taken a view that ordinarily at belated stage, leave for filing additional written statement is usually not granted. 8. In the case of P.A.JAYALAKSHMI VS. H.SARADHA AND OTHERS reported in 2009 (4) CTC 201, the Apex Court has specifically taken a view that ordinarily at belated stage, leave for filing additional written statement is usually not granted. Order VI, Rule 17 C.P.C, which speaks about the amendment of pleadings whereas Order VIII Rule 9 of CPC provides for subsequent pleadings by a defendant and the distinction between two provisions is evident and unless contrary intention is expressed by Court, any amendment carried out in pleadings shall relate back to date of filing original proceeding. This judgment is also not helpful to the case of the petitioner. 9. In the case of REVAJEETU BUILDERS & DEVELOPERS V. NARAYANASWAMY & SONS & OTHERS reported in 2009 (13) Scale 241 , the Apex Court has considered Order VI Rule 17 and in an application for amendment of plaint, it has formulated certain guidelines and paragraph 67 reads as follows: "67. On critically analyzing both the English and Indian cases, some basis principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. "(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? .(2) Whether the application for amendment is bona fide or mala fide? .(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. .(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; .(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and .(6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." After taking into consideration the principle enumerated in the above judgments and also the scope of Article 227 of the Constitution of India and all the facts of the present case, I am of the view that the trial Court has correctly appreciated the materials and evidence and come to the correct conclusion rejecting the additional written statement filed by the petitioners/defendants. In these circumstances, the order passed by the trial Court is in accordance with law and the same is confirmed. The revision is devoid of merits and the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.