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2013 DIGILAW 749 (MAD)

Maduri Pillai v. V. Aswathi Reddiar

2013-02-04

D.HARIPARANTHAMAN

body2013
Judgment :- 1. The first petitioner is the sister of the petitioners 2 and 3. The petitioners herein filed O.S.No.16 of 2009 before the District Court, Kanyakumari District, seeking for declaration and permanent injunction and also recovery of possession in respect of some property, that was purchased by their mother in 1950 from the third respondent herein/ third defendant, who is none else than the brother of their mother. The mother of the petitioners died in 2000. 2. While so, according to the petitioners herein, the third respondent/third defendant sold the property to the second respondent/second defendant during 2005 fraudulently. Thereafter, the second defendant, who purchased the property in 2005 again sold to the first defendant. In these circumstances, the petitioners herein filed O.S.No.16 of 1999 as stated above. 3. The third respondent/third defendant was set exparte. The defendants 2 and 3 filed written statement on 12.08.2009. Thereafter, issued were framed. P.W.1 filed proof affidavit on 06.12.2010. Documents were not marked. 4. At this stage, the first respondent/first defendant filed additional written statement dated 07.01.2011, claiming adverse possession. The first respondent/first defendant filed I.A.No.14 of 2011 in O.S.No.16 of 2009, to receive additional written statement. 5. The learned counsel for the petitioners herein in order to expedite the trial, made a statement before the Trial Court that they have no serious objection to receive the additional written statement and that they shall be allowed to file replication. 6. The Trial Court recorded the aforesaid statement made by the learned counsel for the Petitioners on 07.07.2011 and allowed I.A.No.14 of 2011 in O.S.No.16 of 2009. 7. While so, the petitioners herein filed I.A.No.471 of 2011 in O.S.No.16 of 2009, to receive reply statement under Order VIII Rule 9 of C.P.C. However, the Trial Court passed an order dated 03.08.2012 in I.A.No.471 of 2011 in O.S.No.16 of 2009, rejecting the application. This revision petition is against the said order. 8. Heard the learned counsel for the petitioners. 9. The first respondent/first defendant filed additional written statement only on 07.01.2011. Thereafter, the same was received pursuant to the order dated 07.07.2011 in I.A.No.14 of 2011 in O.S.No.16 o9f 2009 to receive the additional written statement. The Petitioners herein expressed no objection for receiving additional written statement. 8. Heard the learned counsel for the petitioners. 9. The first respondent/first defendant filed additional written statement only on 07.01.2011. Thereafter, the same was received pursuant to the order dated 07.07.2011 in I.A.No.14 of 2011 in O.S.No.16 o9f 2009 to receive the additional written statement. The Petitioners herein expressed no objection for receiving additional written statement. While expressing no objection for receiving no additional written statement, the learned counsel for the petitioners made a statement before the Trial Court that they shall be permitted to file a reply statement. The Trial Court allowed I.A.No.14 of 2011 on 07.07.2011 granting the petitioners to file application to receive reply statement, stating reasons. While so, the petitioners herein filed I.A.No.471 of 2011 in O.S.No.16 of 2009. The same was dismissed by the order dated 03.08.2012. The same is questioned before this Court. 10. The Trial court has stated in para 10 of the order that the trial was commenced, after filing of the additional written statement. In my view, factually, it is not true. The aforesaid narration of facts makes it clear that the additional written statement was filed by the first respondent/first defendant only after P.W.1 filed the proof affidavit. 11. As stated above, the petitioners did not object the first respondent/first defendant filing additional written statement. They wanted to file reply statement. 12. I.A.No.471 of 2011 was filed under Order VIII Rule 9 of C.P.C. Order VIII Rule 9 of C.P.C. Is extracted hereunder: "Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same." As per Order VIII Rule 9 of C.P.C., there is no bar for filing application by the petitioner to receive reply statement after commencement of trial. The Rule states that leave shall be obtained from the Court. 13. In this case, as stated above, the first respondent/first defendant filed additional written statement only on 07.07.2011. Hence, the petitioners wanted to file reply statement. Therefore, the Trial Court was not correct in stating that the trial was commenced. The Rule states that leave shall be obtained from the Court. 13. In this case, as stated above, the first respondent/first defendant filed additional written statement only on 07.07.2011. Hence, the petitioners wanted to file reply statement. Therefore, the Trial Court was not correct in stating that the trial was commenced. If the first respondent/first defendant was permitted to file additional written statement, the same could not be cited as a reason in the case for filing reply statement. Further, the Trial Court simply stated that through the reply statement, entirely, different pleadings are made. The following sentence in para 10 of the order is extracted hereunder: "This court's opinion is that after commencement of trial, the petitioner is not entitled to file any reply statement. Furthermore, on going through the reply statement, the contention of which is entirely different in his earlier plaint averments." 14. The Trial Court failed to give details as to how reply statement is entirely different from the earlier plaint averments and thereby, the petitioners has sought to make new pleadings. If it is stated, this Court could appreciate the reasoning. If really, entirely different pleadings are made, then the course open to the plaintiff is to file an amendment to the plaintiff. In that event, defendant would get a chance to file a written statement to those new pleadings. But, the Trial Court has not given any details except stating that entirely different contentions are made in the reply statement. Furthermore, the counter filed by the second respondent/second defendant also has stated that the petitioners/plaintiffs are making new pleadings, but the details are not given. Para 2 of the counter affidavit is extracted hereunder: "The averments stated in para 2 and 3 of the affidavit are not correct, misleading and hence that are denied. The 1st plaintiff cannot file replication for new facts that are not covered in the original plaint. The plaintiff in their Replication stated entirely new pleadings for that they have to file fresh suit or amendment application and not entitled to file new pleading by way of filing replication." 15. For all the aforesaid reasons, I am of the view that the impugned order is liable to set aside. The plaintiff in their Replication stated entirely new pleadings for that they have to file fresh suit or amendment application and not entitled to file new pleading by way of filing replication." 15. For all the aforesaid reasons, I am of the view that the impugned order is liable to set aside. Accordingly, the revision petition is allowed and the impugned order is set aside and the matter is remanded back to the Trial Court to pass orders afresh after hearing both sides, in the light of the observations made above. No costs. Consequently, connected miscellaneous petition is closed.