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2010 DIGILAW 2347 (MAD)

Senniappa Gounder v. Karuppusamy

2010-06-10

K.MOHAN RAM

body2010
Judgment :- 1. The petitioners in the above C.R.P. are the defendants 2 to 7 in O.S.No.185 of 2005 on the file of the Additional Sub Court, Tirupur. 2. The brief facts which are necessary for the disposal of the above C.R.P. are set out below:- a. The respondent herein has filed a suit in O.S.No.185 of 2005 seeking for a decree for specific performance in respect of the sale agreement, dated 26.11.1996 said to have been executed by the first defendant in favour of the plaintiff. The defendants 2 to 7 who are the petitioners herein contested the suit. The written statement has been filed by the 5th defendant and the same was adopted by the other defendants. In the written statement itself, they have denied the execution of the sale agreement, dated 26.11.1996. It has been specifically stated in the written statement that the first defendant has fabricated the sale agreement, dated 26.11.1996 with the help of his friends in favour of the plaintiff and filed this vexatious suit. Pending the suit , the petitioners herein filed I.A.No.118 of 2009 seeking leave of the court to file additional written statement. 3. In the affidavit filed in support of the petition, it has been stated that the second defendant is aged about 80 years and is not moving outside the house and has poor sight and hearing power. The 5th defendant was looking after the case on behalf of the other defendants and he filed the written statement, which was adopted by the other defendants. It has been stated in the affidavit that at the time of filing the written statement, the second defendant was confined to hospital for about one year and the 5th defendant was not able to collect entire particulars from him. 4. It has also been stated that the second defendant had forgotten the material points and documents at the time of filing the written statement. It has also been stated that he is the only person alive and knowing the entire facts. 5. In the affidavit it has been further stated that the 4th petitioner/5th defendant personally approached the second defendant and furnished the details of the case and at that time only he came to know more particulars and therefore, it has become necessary to file additional written statement. 6. 5. In the affidavit it has been further stated that the 4th petitioner/5th defendant personally approached the second defendant and furnished the details of the case and at that time only he came to know more particulars and therefore, it has become necessary to file additional written statement. 6. In the additional written statement sought to be filed, the earlier transactions entered into between the petitioners and the first defendant have been mentioned and the existence of an undertaking document, dated 30.1.1998 said to have been executed by the first defendant and one S.Palanisamy in favour of the second defendant has been mentioned. In the said document, they have admitted that there was no encumbrance or sale agreement in respect of the suit property and other properties as well. 7. According to the petitioners, the undertaking document, dated 30.1.1998 itself falsifies the agreement relied upon by the plaintiff. These facts now sought to be stated in the additional written statement are necessary for the proper adjudication of the suit. 8. The said application was contested by the respondent herein contending that the reasons stated in the affidavit are false; the alleged hospitalisation of the second defendant is false; the additional written statement has been filed at a belated stage; when the case was taken up for trial, the petition has been filed to protract the proceedings; the undertaking document is totally false and forged; the defendants 2 to 7 are trying to confuse and camouflage the suit by creating, fabricating and forging a false and untenable document. 9. On a consideration of the rival contentions, the learned Additional Sub Judge, Tirupur, dismissed the petition. In his order, the learned Judge has stated that the document filed along with the additional written statement is said to have come into existence in 1998. But it has not been pleaded in the affidavit that the said document was not in the custody of the petitioners and the same was in the custody of some other person. It has also not been pleaded that in spite of due diligence, the document could not be produced. The learned Judge has dismissed the application mainly on the ground of delay. 10. Being aggrieved by that the above C.R.P. has been filed. 11. Heard both. 12. It has also not been pleaded that in spite of due diligence, the document could not be produced. The learned Judge has dismissed the application mainly on the ground of delay. 10. Being aggrieved by that the above C.R.P. has been filed. 11. Heard both. 12. The learned counsel for the petitioners submitted that the first petitioner is aged about 80 years and is having bad health and he had forgotten the material facts and documents at the time of filing the written statement and the additional written statement was filed by the 5th defendant, who was looking after the case and the same was adopted by the other defendants. The 5th defendant had omitted to mention the deed of undertaking executed between the first petitioner and the first defendant, which relates to the transaction but it was not filed along with the original written statement. The court below has declined to grant leave for filing the additional written statement only on the ground of delay. The court below has not exercised its judicial discretion in accordance with the settled principles of law. 13. The learned counsel further submitted that the discretion conferred on the court under Order 8 Rule 9 C.P.C. should be exercised liberally or otherwise, it will not be possible for the parties to prove their respective case. 14. The question of delay in filing the additional written statement does not arise for the following reasons:- "The suit originally was pending on the file of the Sub Court, Tirupur and the same was transferred to Additional Sub Court, Tirpur on 3.3.2009 and thereafter the case was posted on 14.7.2009 and adjourned to 21.7.2009. On 21.7.2009, the Respondent/plaintiff filed a petition under Order 6 Rule 17 C.P.c. to amend the plaint and notice was ordered returnable on 27.7.2009 and I have filed my counter on 30.7.2009 and the petition was heard on 4.8.2009 and posted for orders on 6.8.2009, again on 12.8.2009, and again on 19.8.2009 and order was passed in I.A.No.44 of 2009 on 24.8.2009 allowing the petition. The case was posted for Amended plaint copy on 1.9.2009, 4.9.2009, 9.9.2009 on that date APC was filed. The trial court granted time for filing of additional written statement on 14.9.2009 and gave last chance on 15.9.2009. The trial has commenced on 17.9.2009 on that date proof affidavit of the plaintiff was filed. The case was posted for Amended plaint copy on 1.9.2009, 4.9.2009, 9.9.2009 on that date APC was filed. The trial court granted time for filing of additional written statement on 14.9.2009 and gave last chance on 15.9.2009. The trial has commenced on 17.9.2009 on that date proof affidavit of the plaintiff was filed. For marking of documents, the case was posted on 1.10.2009, 5.10.2009, 7.10.2009, 9.10.2009, 12.10.2009 and on 14.10.2009 and the plaintiff marked the documents and the case was adjourned for cross examination on 20.10.2009, 22.10.2009 and on that date the application under Order 8 Rule 9 C.P.C. was filed. From the above adjudications, it can be inferred that no sufficient opportunity was given to file additional written statement after the application for amendment of plaint was allowed on 24.8.2009. Therefore, the trial Court ought to have liberally allowed the application filed by me without finding fault of delay." 15. In support of his contention, the learned counsel relied upon the decision of the Apex Court reported in 2009 (9) SCALE 338 (Olympic Industries vs. Mulla Hussainy Bhai Mulla Akberally & Others), wherein the Apex has held that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, delay is no ground for dismissal of an application under Order 8 Rule 9 Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by cost. That apart, the delay in filing the additional counter statement has to be explained properly. 16. In the same decision, it has been further held that it is also well settled that while allowing additional counter statement or refusing to accept the same the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. 17. Countering the said submissions, the learned counsel for the respondent submitted that there is absolutely no proof to show that the petitioner was hospitalised for about one year. 17. Countering the said submissions, the learned counsel for the respondent submitted that there is absolutely no proof to show that the petitioner was hospitalised for about one year. It is not the case of the petitioner that the undertaking document now sought to be relied upon in the additional written statement could not be traced in spite of due diligence and it was in the custody of some other third party and he had handed over that document only now. 18. The learned counsel submitted that since the present petition has been filed at the stage when D.W.1 had filed proof affidavit and the case was posted for cross examination of P.W.1, the court below has rightly rejected the petition. 19. In support of his contention, the learned counsel relied upon the decision of the Apex Court reported in 2009-6-MLJ-1138 (P.A. Jayalakshmi vs. H. Saradha and others). In the said decision, in paragraphs 9 and 10, the Apex Court has laid down as under:- "9. For reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order 6 Rule 17 of Code of Civil Procedure. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order 8 Rule 9 of the Code of Civil Procedure. At no point of time, a contention was raised that she wanted to amend her pleadings. "10. Ordinarily, at such a belated stage, leave for filing additional written statement is usually not granted. We may notice that one of the plaintiffs was examined on 1.3.2007. It is accepted at the bar that despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the Courts should be liberal in allowing applications for leave to amend pleadings but is also well settled that the Courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order 6 Rule 17 being one of them." 20. I have considered the submissions made on either side and perused the materials available on record. 21. At the outset, it has to be pointed out that the suit has been filed for specific performance. In the original written statement filed by the petitioners, they have specifically denied the execution of the sale agreement, dated 26.11.1996. Now they are sought to be stated in the additional written statement are the material facts which are connected with the defence already taken. 22. In the affidavit filed in support of the petition, it has been stated that the second defendant is aged about 80 years and he was hospitalised for about one year and the 5th defendant was not able to collect entire particulars from the second defendant and the 5th defendant filed the written statement with the documents available with him and because of that the vital facts and documents, which are relevant and necessary to the case have not been mentioned in the original written statement. It has also been specifically stated that 4th petitioner/5th defendant furnished certain material particulars and other documents only after the 5th defendant came to know the same. 23. In a decision reported in AIR 1964 SC 11 (Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawala & Others), it has been laid down as follows:- "...... It is, no doubt, true that, save in exceptional cases leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this Rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. But this Rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading." 24. Thus it is clear that where an amendment is sought for which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. 25. In this case also, as pointed out above, the petitioners have denied the very execution of the sale agreement and the suit has been filed for specific performance. The additional written statement now sought to be filed contains material facts and circumstances, which according to the petitioners, raise doubt regarding the very execution of the sale agreement. In the considered view of this court, these material facts are necessary for proper adjudication of the dispute between the parties. 26. In the decision reported in 2009(9) SCALE 338, cited supra, the Apex Court has laid the principles to be followed while disposing of the petition filed under Order 8 Rule 9 C.PC. 27. In the said decision, it has been held that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, the delay is no ground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by cost. 28. The Apex Court has also laid down that while allowing additional counter statement or refusing to accept the same the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. 29. 28. The Apex Court has also laid down that while allowing additional counter statement or refusing to accept the same the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. 29. Unfortunately, this aspect has not at all been taken into consideration by the lower court and it has to be pointed out that no prejudice will be caused to the respondent, if the additional written statement is allowed to be filed. 30. The learned counsel for the respondent by basing reliance on the decision of the Apex Court reported in 2009 6 MLJ 1138 submitted that in the said decision the delay in filing the additional written statement has been considered. 31. In the said case, one of the plaintiffs was examined on 1.3.2007. It is accepted at the bar that despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. Since the application for grant of leave to file additional written statement was moved at a later stage, that application was rejected. 32. Here, it is not the case of the respondent himself that the facts now sought to be raised in the additional written statement and the undertaking document entered into between the first and second defendant was within the knowledge of the petitioner even at the time of filing the written statement. Therefore, the said decision is of no help to the respondent. 33. At the cost of repetition, it has to be pointed out that in the written statement itself the very execution of the sale agreement has been denied and the facts now sought to be raised in the additional written statement are only to elucidate the defence taken. Whether the undertaking document, dated 30.1.1998 is genuine or fabricated has to be considered only at the time of trial and not at this stage. The lower court is not justified in dismissing the petition on the ground of delay. The said reasoning is against the principles laid down in 2009 (9) SCALE 338. It has to be further pointed out that the respondent has not pleaded that the allowing of the petition will cause any prejudice to him. 34. The lower court is not justified in dismissing the petition on the ground of delay. The said reasoning is against the principles laid down in 2009 (9) SCALE 338. It has to be further pointed out that the respondent has not pleaded that the allowing of the petition will cause any prejudice to him. 34. In this case, the plaintiff has filed proof affidavit and his cross examination is yet to commence and therefore, it cannot be said that the petition has been filed only to drag on the proceedings. Any way, this court is of the considered view that the respondent can be compensated by costs. 35. Accordingly, the C.R.P. is allowed setting aside the order of the Subordinate Judge, Tirupur. The petitioner shall pay Rs.3000/-as costs to the respondent, which shall be paid within two weeks from the date of receipt of a copy of this order. Connected M.P. is closed.