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2010 DIGILAW 4364 (MAD)

P. M. Viswanathan v. V. P. Ponnusamy

2010-09-29

S.PALANIVELU

body2010
Judgment :- 1. The petitioner is the defendant in O.S.No.430 of 2006 on the file of the First Additional Sub-Court, Erode. This is a suit for recovery of money. The trial started and while the plaintiff was in the box at the time of cross-examination, the petitioner was able to get an answer to the effect that there is a correction in the pro-note and that in the place corrected, there is a hole. Hence, he has come forward with the present application for receiving additional written statement containing a new plea with reference to the material alteration in the suit pro-note. In the affidavit, he has stated that it is further stated that since he comes to know that the suit pro-note was altered materially, the additional statement has to be filed. 2. The said petition was strongly contested by the respondent by stating that prior to filing of written statement, the petitioner should have taken steps to inspect the disputed document but he has not taken any steps. Only to drag on to proceedings, he has filed this petition and the Court has got power to look into the document to find out whether any material alteration is there or not. It is further fluttered that the present venture is an abuse of process of law. 3. Heard both sides. 4. The learned Sub-Judge has dismissed the application by observing that the petitioner is not competent to file the additional written statement on the basis of the oral evidence which came out during the examination of witnesses. 5. The learned counsel for petitioner Mr.Manokaran would submit that as per the settled law, the defendant can put forth a new plea by filing additional written statement even with inconsistence and even after a long time. In support of his contention, he placed reliance upon the decision of the Honble Apex Court reported in (2009) 15 SCC 528 , in which the Lordships have observed as follows: "14......In our view, even by filing an amendment or additional counter-statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the counter-statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to the plaintiff or displacing him completely. (See Usha Balashaheb Swami v. Kiran Appaso Swami, SCC p.612, para 27) Therefore, we are unable to agree with the High Court on this ground as well. 15. It is also well settled that the courts should be more generous in allowing the amendment of the counter-statement of the defendant than in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional counter-statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter-statement was rejected by the High Court on the ground that while allowing such additional counter-statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage." 6. The learned counsel for the respondent Mr.Kumarasamy would repel the arguments of the learned counsel for the petitioner by saying that in the original written statement, the petitioner has raised a plea that he never executed the suit pro-note and the same is forged and fabricated one and that he never borrowed any amount from the plaintiff and hence, the present fresh plea raised by the petitioner is entirely inconsistent to the earlier plea raised by him. As per the above said decision of the Honble Apex court, it is open to the defendant to add a new ground of defence or subsisting or altering defence or even taking inconsistent pleas in counter statement as long as pleadings do not result in causing grave injustice and attributable prejudice to plaintiff or displacing him completely and that the Courts should be more generous in allowing amendment of counter statement defendant. In the considered view of mine, the proposed defence sought to be taken out can be made by the respondent by adducing satisfactory evidence before the Court and there is every opportunity for him to agitated against the said defence. Hence, the additional written statement has to be received by the Court. In such view of this matter, the order challenged before this Court is liable to be set aside and it is accordingly set aside. The petitioner is to pay a cost to the respondent for the delay occurred on his part. 7. Hence, the additional written statement has to be received by the Court. In such view of this matter, the order challenged before this Court is liable to be set aside and it is accordingly set aside. The petitioner is to pay a cost to the respondent for the delay occurred on his part. 7. In the result, the Civil Revision Petition is allowed on condition that the petitioner shall pay a cost of Rs.1,000/- to the learned counsel for the respondent on record before this Court within a period of one week from the date of receipt of a copy of this order, in default the petition shall stand dismissed automatically. Learned counsel for the petitioner says that across the bar, he is paying the cost which is recorded and the Civil Revision Petition is allowed. The learned First Additional Sub Court Erode is directed to dispose of the suit within a period of three months from the date of receipt of the copy of the order. Consequently, the connected miscellaneous petition is also closed.