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2010 DIGILAW 1601 (MAD)

Kaliammal v. R. Muthusamy Gounder

2010-04-06

M.JAICHANDREN

body2010
Judgment : This Civil Revision Petition has been filed against the order, dated 13.7.2009, made in I.A.No.1597 of 2008, in O.S.No.50 of 2002, on the file of the District Munsif Court, Tirupur. 2. The petitioners in the present Civil Revision Petition had filed the suit, in O.S.No.50 of 2002, on the file of the District Munsif Court, Tirupur, to direct the defendants to deliver vacant possession of the suit properties to the plaintiffs, within the time set by the Court and on default thereof, to put the plaintiffs in possession of the suit property and for a permanent injunction to restrain the defendants and others, in any way, damaging, altering or committing act of waste, in respect of the suit properties. 3. The defendants in the suit are the respondents herein. The petitioners had filed an interlocutory application, in I.A.No.1597 of 2008, under Order 8 Rule 9, read with Section 151 of the Civil Procedure Code, 1908, seeking permission of the trial court to file a reply statement. The petitioners had filed the suit based on a registered Will executed by their father. However, the defendants in the suit, who are the respondents herein, had denied the execution of the Will. In such circumstances, the petitioners had filed the interlocutory application for filing a reply statement denying the allegations made in the written statement filed by the respondents, in the said suit. 4. It had been stated that, only when a reply statement is permitted to be filed, the petitioners would be in a position to adduce oral evidence in the suit, with regard to the statements made in the written statement filed on behalf of the respondents. 5. The trial Court, by its order, dated 13.7.2009, had dismissed the interlocutory application filed by the petitioners stating that, if the petitioners are permitted to file a reply statement, it would not only be prejudicial to the respondents, but it would also be contrary to the directions issued by the Subordinate Court, Tirupur, in its judgment, dated 28.11.2007 made in A.S.No.15 of 2005. The Trial Court had further stated that the order of remand by the subordinate Court, Tirupur, was only for letting in further evidence and not for filing additional pleadings. 6. The Trial Court had further stated that the order of remand by the subordinate Court, Tirupur, was only for letting in further evidence and not for filing additional pleadings. 6. Aggrieved by the order of the trial Court, dated 13.7.2009, made in I.A.No.1597 of 2008, the present Civil Revision Petition has been filed before this Court, under Article 227 of the Constitution of India. 7. The learned counsel for the petitioners had submitted that the order of the trial Court, dated 13.7.2009, made in I.A.No.1597 of 2008, is arbitrary and contrary to law. The Court below had failed to exercise its jurisdiction by allowing the interlocutory application filed by the petitioners, for filing a reply statement. The Court below had failed to note that the filing of the reply statement by the petitioners would only help the trial Court in adjudicating the issues arising for its consideration. 8. The learned counsel for the petitioner had further submitted that the reasoning of the trial Court that the subordinate Court, Tirupur, had remanded the matter only for the purpose of letting in further evidence and not for filing additional pleadings, is erroneous. The trial Court had also failed to see that no oral evidence can be let in without the necessary pleadings. 9. Per contra, the learned counsel appearing on behalf of the respondents had submitted that the order of the District Munsif Court, Tirupur, dated 13.7.2009, made in I.A.No.1597 of 2008, is in accordance with law and the judgment of the subordinate Court, Tirupur, dated 28.11.2007, made in A.S.No.15 of 2005. When the remand by the appellate Court was only for letting in further evidence, it would not be open to the petitioners to file a reply statement, as prayed for in I.A.No.1597 of 2008. 10. The learned counsel for the petitioners had relied on the decision of this Court, in FRANCISCA PANDIAN Vs. JOSEPH AND ANOTHER (2005) 2 M.L.J.422 to show that the petitioner has a right to file a reply to the written statement filed by the respondents. 11. 10. The learned counsel for the petitioners had relied on the decision of this Court, in FRANCISCA PANDIAN Vs. JOSEPH AND ANOTHER (2005) 2 M.L.J.422 to show that the petitioner has a right to file a reply to the written statement filed by the respondents. 11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned, and on a perusal of the records available, this Court is of the considered view that the petitioners have shown sufficient cause and reason to set aside the order, dated 13.7.2009, made in I.A.No.1597 of 2008, in O.S.No.50 of 2002, and to direct the District Munsif, Tirupur, to permit the petitioners to file a reply statement, as prayed for by them, in I.A.No.1597 of 2008. When the subordinate Court, Tirpur, by its judgment, dated 28.11.2007, made in A.S.No.15 of 2005, had remanded the matter back to the trial Court for letting in further evidence, it would only be appropriate for the trial Court to permit the petitioners to file a reply statement relating to certain averments made in the written statement filed by the respondents in the suit, in O.S.No.50 of 2002, to enable the petitioners to let in further evidence and for effective adjudication of the issues arising for the consideration of the trial Court, in the suit in O.S.No.50 of 2002. 12. It is seen that the appellate Court had set aside the judgment and decree of the trial Court, by its judgment, dated 28.11.2007, made in A.S.No.15 of 2005, and it had remanded the matter back to the trial Court for letting in further evidence. In such circumstances, it would only be appropriate for the trial Court to permit the petitioners to file a reply statement as prayed for, in I.A.No.1597 of 2008. As such, the Civil Revision Petition stands allowed. No costs. Consequently, connected M.P.No.1 of 2009 is closed.