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2012 DIGILAW 3301 (MAD)

Pachamuthu v. Ramasamy Gounder

2012-07-26

M.VENUGOPAL

body2012
Judgment :- 1. The petitioner has preferred the instant Civil Revision Petition as against the order dated 10.12.2009, in I.A.No.700 of 2009 in O.S.No.163 of 2007, passed by the learned District Munsif, Sankari. 2. The Learned District Munsif, while passing orders in I.A.No.700 of 1989, in O.S.No.163 of 2007, on 10.12.2009 has among other this observed that, " this court is also of the opinion that the petitioner could not be permitted to file the proposed additional written statement when most of the cross examination of P.W.1 was completed and the matter was in the part heard stage. It is settled law that by way of additional written statement, the defendant could not introduce a new case or mutually destructive pleas etc.," and consequently, dismissed the application with costs. 3. The Learned counsel for the Revision Petitioner urges before this court that the Trial Court, while dismissing the I.A.No.700 of 1989, has committed an error by observing that the petitioner is introducing a new case by way of the proposed Additional Written Statement on the ground of delay and contents that the reception of the Additional Written Statement cannot be rejected/dismissed. 4. In any event, it is the further submission of the Learned counsel for the Petitioner/Defendant that the Petitioner, as a Defendant, in law is entitled to take an alternative and contradictory pleas in the Written Statement. Further, there is no bar for the Petitioner/Defendant to take views, a merely inconsistent/destructive plea by means of a subsequent pleading. 5. The Respondent/Plaintiff has filed O.S.No.163 of 2007 on the file of the learned District Munsif, Sankarai on the allegation that on 15.07.2005, the Revision Petitioner/Defendant borrowed a sum of Rs.75,000/-from him for his urgent, family and business expenses and executed a pronote in favour of the Respondent/Plaintiff, agreeing to repay the said amount with interest @ 12% per annum payable either to the Plaintiff or to his order on demand. In short, the Plaintiff has filed a suit for recovery of a sum of Rs.92,375/- along with interest at 12% per annum, from the date of suit till the date of realisation. 6. The Revision Petitioner/Defendant has filed a detailed Written Statement stating that "it is false to state that on 05.07.2005 he borrowed a sum of Rs.75,000/- from the Respondent/Plaintiff, for the urgent family and business expenses and thereby, executed a pronote etc. 7. 6. The Revision Petitioner/Defendant has filed a detailed Written Statement stating that "it is false to state that on 05.07.2005 he borrowed a sum of Rs.75,000/- from the Respondent/Plaintiff, for the urgent family and business expenses and thereby, executed a pronote etc. 7. As a matter of fact, the Petitioner/Defendant has taken a categorical stand that the suit pronote is a false and fabricated one. In paragraph 9 of the written statement, the revision petition/Defendant has stated the true facts as under: This defendant is aged more than 70-years and hence after the receipt of the notice he contacted his two sons and he enquired about the Xerox copy of the pronote send with the notice. At the time this defendant's younger son by name Muthusamy told that on 25.09.2002 a sum of Rs.4,0000/-is borrowed from the plaintiff and at that time he told that, this defendant, his younger son Muthusamy, his mother Vellaiammal to affix the thumb impression in 3 separate blank pronotes and asked all the 3 above said persons to sign in a non judicial stamp paper worth Rs.20/-and also affix the signatures in the said stamp paper and other two papers. Thus, this defendant along with his son Muthusamy, mother Vellaiammal has affixed thumb impression in the Rs.20/-stamp paper and two papers and also affix his thumb impression along with his son Muthusamy and Mother Vellaiammal in three separate blank pronotes. This defendant and his mother are not signatories and his son Muthusamy alone signed and affixed thumb impression in 1 pronote and in Rs.20/-stamp paper and 2 papers. This defendant affixed thumb impression in a pronote and his mother affixed her thumb impression in another pronote and this defendant and his mother affixed thumb impressions in Rs.20/- stamp paper and 2 papers. The Rs.20/-stamp paper is dated 25.09.2002. 1.Duraian, S/o Vellaya gounder Ottalampattyakadu, Annathanapatty Village, Sankari Taluk, 2.Nallathambi S/o Ramasamy Pachaipatty, Konakattankadu, Iveli Village, Sankari Taluk, have signed as witness in the stamp paper and the other two papers. At that time this defendant agreed to pay interest and he paid Rs.5,000/-as interest some three years ago. Now this defendant understands that the plaintiff has filled up the blank pronote in which this defendant affix his thumb impression. At that time this defendant agreed to pay interest and he paid Rs.5,000/-as interest some three years ago. Now this defendant understands that the plaintiff has filled up the blank pronote in which this defendant affix his thumb impression. This defendant is ready to pay said sum of Rs.4,0000/-provided your client returns two other pronotes in which this defendant's son affixed thumb impression and signed, this defendant's mother Vellaiammal affixed her thumb impression apart from suit pronote and also the Rs.20/-stamp paper and two other papers in which this defendant, his son and his mother affixed the thumb impression and this defendant's son Muthusamy signed. The suit pronote for which the plaintiff send notice has not been executed on 15.07.2005 or any other dates as stated in the notice sent by the plaintiffs and only under above said circumstance the pronote came into existence. The person who has written alleged pronote dated 15.07.2005 is plaintiff's son-in-law and the witnesses are the close relatives and friends of plaintiff. Since the plaintiff is having promotes as alleged he is sending notices as he pleases. Further the plaintiff has sent a notice to this defendant at the address of the defendant's son Muthusamy. The said notice has been sent by the plaintiff himself. Since the plaintiff has got the pronotes and the stamp paper and other papers as aforesaid the plaintiff had issued two notices on 06.04.2007 with false and vexatious allegations." 8. It is stated that the Respondent/Plaintiff has been examined as P.W.1 and P.W.1 has also been subjected to a lengthy cross examination in part. At that point of time, the Revision Petitioner/Defendant, has chosen to file I.A.No.700 of 2009 praying permission of the trial court to file the Additional Written Statement, under Order 8 Rule 9 of CPC, as subsequent pleading. In the Affidavit, the Revision Petitioner/Defendant has stated the following: "The respondent herein filed the above suit as against me on a forged and fabricated Promissory note alleging that a sum of Rs.75,000/-is borrowed from him. I have filed the written statement denying the averments made by the respondent. I submit that the above case is posted on 26.06.2009. When I was discussing about the case with my Advocate, by going through the file, I came to know that at the time of filing the written statement, I have omitted to put forth certain averments. I have filed the written statement denying the averments made by the respondent. I submit that the above case is posted on 26.06.2009. When I was discussing about the case with my Advocate, by going through the file, I came to know that at the time of filing the written statement, I have omitted to put forth certain averments. I submit that on 13.09.1996 I have borrowed a loan of Rs.50,000/-from the respondent herein and at the time of borrowing the said loan Myself, my sons and my mother signed and affixed the thumb impression in unfilled promissory notes and Rs.10/-stamp paper and other concur sheets and other papers. I have paid interest. On 25.09.2002 I have approached the respondent to settle the amount along with my sons. On 25.09.2002 I have settled the amount and my elder son paid the amount of his share and my younger son has to pay Rs.40000/-to the respondent. On that day also Myself, my sons and my mother signed and affixed the thumb impression in unfilled promissory notes andRs.10/-stamp paper and other concur sheets and other papers. I submit that the respondent with the said pronotes had been forged and fabricated the suit promissory note with a view to harass me and with a view to grab my properties. Since the respondent is residing near to my house and also own lands abetting my lands with a view to get my properties have been filling this suit promissory note to achieve his illegal design. The respondents main aim is by taking advantage of the said unfilled promissory notes and Rs.10/-stamp paper and other concur sheet and other documents." 9. The Learned counsel for the Respondent/Plaintiff relies on the decision of this Court R.S.Nagarajan v. R.S.Gopalan and others reported in 2007(1) CTC at page 586 wherein, it is held that the defendant cannot introduce a new case or merely destructive pleas by way of Additional Written Statement. 10. He also seeks in aid of the decision of this Court in the Judgment reported in 2009 (3) MLJ 654 (Kaliammal and Others vs. P. Marimuthu and Another) wherein, it is held that the petitioners are not entitled to take a destructive plea, than the one taken by them earlier. 11. 10. He also seeks in aid of the decision of this Court in the Judgment reported in 2009 (3) MLJ 654 (Kaliammal and Others vs. P. Marimuthu and Another) wherein, it is held that the petitioners are not entitled to take a destructive plea, than the one taken by them earlier. 11. It cannot be gainsaid that an Additional Written Statement cannot introduce a new cause of action or the Additional Written Statement sought to be projected ought not to contain a variant stand taken by a party. If a party/person is ordered to take a different stand than the one taken by him in earlier proceedings/written statement filed by him then, it is certainly impermissible in law to allow such a prayer. To this, the learned counsel for the Revision Petitioner/Defendant comes out with an argument that the Petitioner/Defendant, as a Defendant, in law, is entitled to take any number of contradictory or merely destructive stands or pleas and in fact there is no impediment for the same in law. Added further, learned counsel for the Revision Petitioner/Defendant strenuously contends that the plea of taking inconsistent stand which is not permissible to be taken is only to be imposed upon the plaintiff in a case, because of the fact that it is the duty of the plaintiff in a Civil Suit, to prove his case and he has to stand or fall on his own legs. Moreover, a Plaintiff in a case cannot improve or take advantage of the ignorance of the Defendant in a given case. 12. There can be no doubt that the Revision Petitioner/Defendant can take persistently an inconsistent plea. However, the general rider is that under the guise of filing an Additional Written Statement, the defendant ought not to set up totally a new case or subsequent new facts which are diametrically and semitrically projected by him, earlier in the written statement. 13. No doubt, Order 8 Rule 9 of CPC gives a wide discretion to a court of law to receive the Additional Written Statement by means of subsequent pleadings. In this regard, a court of law has to act judiciously and especially to be more circumspect. 14. In the instant case on hand, the chief examination of P.W.1(Plaintiff) was over and P.W.1 was subjected to lengthy cross examination in part. In this regard, a court of law has to act judiciously and especially to be more circumspect. 14. In the instant case on hand, the chief examination of P.W.1(Plaintiff) was over and P.W.1 was subjected to lengthy cross examination in part. By way of an Additional Written Statement Defendant/Revision Petitioner cannot be permitted to defend by raising an alternative plea, because of the reason that the benefit of earlier evidence recorded will be lost/erased, if the Additional Written Statement is allowed to be received by the trial court. 15. Be that as it may, the mere presumption under Section 118(a) of the Negotiable Instrument Act will arise only when the execution of pronote is admitted. The reputable presumption as regards the execution of pronote can be brought by the Defendant through a circumstantial evidence or by presumption of fact drawn under Section 114 of the Indian Evidence Act, 1872. In law, any presumption as regards the quantum of consideration is different from the mere existence of consideration. 16. Looking at from any angle and on going through the principles of law, this Court comes to an inescapable conclusion that the Revision Petitioner/Defendant has taken an opposite stand in the Additional Written Statement, than the one taken in the written statement filed by him earlier. As such, the Revision Petitioner/Defendant is not permitted in law, to introduce a new set of facts, thereby changing the character of the defence/pleadings brought by him earlier. Viewed in that perspective, the Civil Revision Petition fails. 17. In the result, this Civil Revision Petition is dismissed. It is made clear that the dismissal of the Civil Revision Petition will not preclude the Revision Petitioner/Defendant to raise all factual and legal pleas open to him before the trial Court in the manner known to law. Since the suit is of the year 2007, the trial court is directed to dispose of the main suit, within a period of three months, from the date of receipt of a copy of this order. The parties are directed to cooperate with the trial court to resolve the controversies/dispute, in a complete and comprehensive manner. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.