Judgment :- 1. Inveighing the fair and decreetal order dated 10.09.2009 passed by the learned Principal District Judge, Namakkal in I.A.No.16 of 2008 in A.S.No.31 of 2007, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this civil revision petition would run thus : The respondent herein/plaintiff filed the suit O.S.No.747 of 1999 based on the promissory note and the matter was contested. Ultimately, the trial court decreed the suit as against which the revision petitioner herein/defendant preferred appeal. During the pendency of the appeal, I.A.No.16 of 2008 was filed by the appellant seeking permission of the Appellate court to file additional written statement. However, after hearing both sides, the appellate court dismissed the said application. 4. Being aggrieved by and dissatisfied with the same, this revision has been filed on various grounds. 5. The learned counsel for the revision petitioner placing reliance on the grounds of revision, would set forth and put forth his arguments, the pith and marrow of them would run thus: The trial court while decreeing the suit held that even though there were oral and the documentary evidence to prove virtually the alibi of the defendant concerned at the time of the execution of the pro note yet those documents and oral evidence concerned were not backed by the pleadings. Hence, it necessitated the the defendant to file the I.A before the appellate court to seek permission to file additional written statement setting out the said virtual plea of alibi based on those documents and oral evidence. However, the appellate court on technical grounds, without viewing the matter in proper perspective simply rejected it. Hence, this revision. 6. Per contra, in an attempt to torpedo and pulverise the arguments as put forth on the side of the revision petitioner, the learned counsel for the respondent/plaintiff would set forth and put forth his argument, which could tersely and briefly be set out thus: Absolutely, there was no rhyme or reason on the part of the defendant in seeking permission to file additional written statement at the appellate stage, so as to fill up the lacuna. The revision petitioner/appellant/defendant had due opportunity to file a detailed written statement incorporating his alleged plea of alibi, but he had not done so. The revision petitioner/appellant/defendant had due opportunity to file a detailed written statement incorporating his alleged plea of alibi, but he had not done so. It is not the case of the defendant that only after the completion of the trial or after the disposal of the suit, he came to know about certain facts and that which alone necessitated him to file such additional written statement. Accordingly, the learned counsel for the respondent would pray for the dismissal of the revision. 7. The points for consideration are as to: Whether the appellate court was justified in dismissing the application in seeking permission to file additional written statement and whether there is any perversity or illegality in the order passed by the appellate court? Point No.1: 8. A mere poring over and perusal of the typed set of papers would clearly evince and evidence that in this case, the defendant disputed the very execution of the pro-note and with an intention to torpedo the evidence adduced on the side of the plaintiff in support of the plaintiffs contention that the suit pro-note was executed on a particular date in a particular place, the defendant by way of rebuttal did choose to adduce evidence and also marked Exs.B2, B3, B4 and B12. However, the facts relating to those documents and the alleged factum of the defendant having taken treatment in a different place at the relevant time were not found exemplified in the original written statement. The trial court while rejecting the plea of the defendant observed that there were no adequate pleadings so as to support the evidence adduced on the side of the defendant. The defendant as an appellant developed certain apprehension that the appellate court also might on the ground of lack of pleadings discard the documentary evidence and also the relevant oral evidence adduced before the trial court and as such by way of ex abundanti cautela – (by way of abundant caution) such an application was filed seeking permission to file additional written statement. 9. I recollect and call up the adage that one cannot try to put the cart before the horse. 9. I recollect and call up the adage that one cannot try to put the cart before the horse. The defendant cannot try to fill up the lacuna as it has become fait accompli that before the trial court evidence was adduced without the backing of the pleading that as on the date of execution of the promissory note the defendant was in a different place taking treatment etc. 10. It is for the appellate court, which is now seized of the matter to decide whether such oral and documentary evidence relating to the plea of virtual alibi is tenable or not even though details are not found set out in the original written statement. It is a pure law point and it is open for the revision petitioner to canvass his point and it the duty of the appellate court with open mind to analyse the same in the wake of settled principles of the law governing the same. Simply because the trial court discarded the evidence relating to the plea of alibi, the endeavor on the part of the defendant to file additional written statement , in my opinion is untenable. What has happened has happened and in order to nullify certain observations made by the lower court, afresh pleading cannot be tried to be put before the appellate court in the form of additional written statement. 11. I hark back to the maxim judicis est judicare secundum allegata et probata – It is the duty of a Judge to decide according to facts alleged and proved. Such a maxim is applicable in appropriate circumstances and it is for the appellate court to decide as to its applicability in the factual situation. 12. I recollect and call up the decision of the Honble Apex Court reported in 2008(4) TLNJ 588 (Civil) (SC) (Vidyabai and others vs. Padmalatha and another) and certain excerpts from it would run thus: "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "Provided that no application for amendment shall be allowed after the 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 trial." It is couched in a mandatory form. The courts jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding. 9. Although in a different context, a Three-Judge Bench of this Court in Union of India and others v. Major General Madal Lal Yadav (Retd) ([1996] 4 SCC 127) took note of the dictionary meaning of the terms trial and commence to opine: 19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced. 10. Order XVIII, Rule 4(1) of the Code reads as under: "4.Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and c5opies thereof shall be supplied to the opposite party by the party who claim for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court." 11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms: "15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms: "15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it." In Kailash v. Nanhku ([2005] 4 SCC 480), this Court held: "13. At this point the question arises:when does the trial of an election petition commence or what is the meaning to be assigned to the word trial in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word trial. We may notice that in Ajendraprasadji N.Pandey and Another v. Swami Keshavprakeshdasji N. And Others ([2006] 12 SCC 1), this Court noticed the decision of this Court in Kailash (supra) to hold: 35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.1.7.2002. It had a provision permitting amendment as described therein. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.1.7.2002. It had a provision permitting amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration." It is therefore crystal clear that at the appellate stage trying to file an additional statement in support of the oral and documentary evidence, in my considered opinion is totally untenable. 14. The learned counsel for the revision petitioner wold cite the decision of this court reported in (2008) 1 MLJ 309 (Mad) (Muthuraman vs. Muthukumaran). An excerpt from it would run thus: 6. In yet another decision in A.Perumal Raj v.B.Rajendran (2007) 4 MLJ 186 : 2007 (2) LW 938 , a similar issue came up for consideration before this court, where it was alleged that the intention behind the petition was only to drag on the proceedings and that the averments made in the additional written statement were of no relevance to the issue involved in the suit. In the above reported judgment, the suit is for recovery of money on the basis of the promissory note and the petition to receive the additional written statement was filed after examination of the defence witness (DW1). On the objection made by the plaintiff that the petition for receiving the additional written statement had been filed belatedly, the lower court dismissed the above said petition. This court, after considering the following decisions in Kallathal v. Murugatham and others, 200695) CTC 580; Chandra and other v. Ranganathan, 2005(4) CTC 55; Baldev Singh v. Manohar Singh, AIR 2006 SC 2832 : (2006) 6 SCC 498 : (2007) 7 MLJ 838: 2007(1) LW 848 and Ma Shive Mya v. Maung MO Hnaung, AIR 1922 PC 249: 1923 (17) LW 213, held that no new plea was taken in the additional written statement and the filing of the additional statement was to supplement the earlier statement by furnishing more details. This court further held that the respondent/plaintiff would not be put to any prejudice, if the petition is allowed and while considering the petition, liberal approach should be adopted. 7. The object of filing of additional written statement is to supply what might have been omitted in the written statement filed earlier and the additional written statement can be allowed, if it is not likely to cause prejudice to the plaintiff. The court should grant permission to the defendant for filing subsequent pleadings if they are so relevant to prove the facts placed before the Court by the defendant, which cause no prejudice to the plaintiff even in the absence of any claim or set off or counter claim. In the instant case, the plea of the petitioner was denial of execution of the promissory note and the averments made in the additional written statemet that he was away on the date, when the said promissory note was alleged to have been executed is only supplementary an does not introduce a new case other than what was pleaded earlier. By filing an additional written statement to supplement the pleadings, no prejudice would be caused to the plaintiff and therefore, the lower court ought not to have dismissed the petition on the ground of delay." 14. The learned counsel for the respondent would cite the following decisions: i) AIR 1976 Madras 302 (Murthi Gounder vs. Karuppanna Gounder) ii) 1998(II) CTC 94 (N.Srinivasan vs. Muthammal) iii) 2005(2) MLJ 41 (Devanbu vs. Sundara Raj and others) iv)2007-3-L.W.205 (Chinnammal vs. Shanmugam and 2 others) v) (2008) 13 SCC 179 (Bollepanda P.Poonacha and another vs. K.M.Madapa) vi) 2009(3) MLJ 959 (Tajdeen vs. Abdul Muthalif) vii) (2009) 14 SCC 525 (P.A.Jayalakshmi vs. H.Saradha and others) viii)2010(1) TLNJ 561 (Civil) (Devadasan Tamilchelvan vs. Dr.R.Kartheesan) 15. In the wake of the decision of the Honble Apex Court in the Vidya Bais case referred to supra and also in view of the fact that at the appellate stage, the defendant attempted to file additional written statement so as to back up the oral and documentary evidence already adduced before the trial court, I am of the view that the order passed by the appellate court warrants no interference accordingly, this civil revision petition is dismissed. However, I would like to point out that the appellate court is expected to consider in depth the admissibility of the oral and the documentary evidence as per law and also the specific issue as to whether the trial court was justified in not placing reliance on those documents in the absence of any specific pleading in the written statement. Untrammelled and uninfluenced by any of the observations made by this court in this revision as well as by the appellate court in its order, the appeal might be heard and disposed of. 16. With this observation, this revision petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.