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2013 DIGILAW 905 (MAD)

Kamatchi v. Ramachandran

2013-02-13

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner/Defendant has filed the instant Civil Revision Petition as against the order dated 03.12.2010 in I.A.No.246 of 2010 in O.S.No.103 of 2010 passed by the Learned II Additional Subordinate Judge, Cuddalore. The Learned II Additional Subordinate Judge, Cuddalore, while passing the impugned order in I.A.No.246 of 2010 in O.S.No.103 of 2010 on 03.12.2010, has interalia observed that through the additional written statement, a new person and that too, not connected with the suit has to be included and with the said person a Sale Agreement has been entered into and on that basis, the additional written statement has to be received and also, that in order to delay the suit, the Petitioner/Defendant is acting and in that respect, she is not entitled to claim the relief prayed for by her and consequently, dismissed the application without costs. 2. Canvassing the correctness of the order dated 03.12.2010 in I.A.No.246 of 2010 in O.S.No.103 of 2010 passed by the Learned II Additional Subordinate Judge, Cuddalore, the Learned Counsel for the Petitioner/ Defendant submits that the Petitioner/Defendant has filed I.A.No.246 of 2010 to receive additional written statement to include the factual aspect covered by a Registered Document and also that the plea of non-joinder of necessary party is only an additional plea. But the trial Court has failed to take note of the fact that by allowing the additional written statement to explain or elucidate the matter in issue, no prejudice or hardship will be caused to the Respondent/Plaintiff. Also, it is the case of the Petitioner/Defendant that the ingredients of Order 8 Rule 9 of the Civil Procedure Code pertaining to 'subsequent pleading' is to be liberally and leniently viewed by a Court of Law, in the interest of justice. 3. It is true that in respect of an additional written statement is concerned, the ingredients of Order 8 Rule 9 of the Civil Procedure Code provides enough power to a Court of Law, especially the trial Court, to grant permission to a party to project the additional written statement. Further, it does not prescribe by imposing any kind of restriction as to what sort of defence is to be taken or pleaded. 4. Further, it does not prescribe by imposing any kind of restriction as to what sort of defence is to be taken or pleaded. 4. In the instant case on hand, the Petitioner/Defendant, in the written statement (filed for the plaint to the suit in O.S.No.151 of 2008 on the file of the trial Court) has clearly stated in paragraph-6 the following "6. The defendant entered sale agreement with the plaintiff only to purchase a property from one Mr. T. Kalayanasundaram. His defendant entered into a sale agreement with Kalayanasundaram on 10.12.2008 to purchase an extent of Ac 5.31. Since the plaintiff did not fulfill his part of contract with respect to the suit sale agreement the defendant herein could not fulfil her part of contract with T. Kalayanasundaram. Only due to plaintiff's default the defendant was put to loss and hardship." 5. Significantly, the Petitioner/Defendant in I.A.No.246 of 2010 has in paragraph-2 of her affidavit has among other things stated that she has revoked the agreement of sale and further executed an agreement of sale on 10.12.2008 with one T. Kalayanasundaram for Rs.11,75,000/-. It is a registered agreement of sale and she wanted to purchase his lands, but has mistakenly mentioned about the sale agreement, as if it is the agreement regarding Kalayanasundaram's land, which has happened by oversight. 6. It is to be pointed out that Or.8 R.9 of the Civil Procedure Code is aimed to shorten the delay and expedite trial of cases. As such a Court of Law is to be circumspect in this regard. Also, the ingredients of Or.8 R.9 of the Civil Procedure Code do not fetter that after beginning of trial, no subsequent pleading shall be entertained as specified under Or.6 R.17 of the Civil Procedure Code. The civil law does not completely prohibit inconsistent pleas to be taken by a Defendant in a given case. Further more, 'Grant of Leave' to file additional written statement or bring additional facts on record would not be construed that a Court of Law will always accept them as a truthful one. Permission to file additional written statement, is to be granted by a Court of Law exercising a judicial discretion. 7. Further more, 'Grant of Leave' to file additional written statement or bring additional facts on record would not be construed that a Court of Law will always accept them as a truthful one. Permission to file additional written statement, is to be granted by a Court of Law exercising a judicial discretion. 7. A perusal of the recitals of the registered Sale Agreement dated 10.12.2008 (as seen from the typed set of papers filed by the Petitioner/ Defendant) shows that in the said Agreement 'B' Party is mentioned as J. Kamatchi and 'A' Party is described as T. Kalayanasundaram. Further more, paragraph-3 of the contents of the Sale Agreement in Tamil clearly points out to the effect that 'A' Party viz., T. Kalayanasundaram has requested the 'B' Party viz., J. Kamatchi, Defendant to sell the property mentioned in new Survey No.53/1 at Cuddalore OT Village, Sanarapalayam, measuring a total extent of 5 acres and 31 cents. The Sale Agreement speaks of sale consideration of Rs.11,75,000/-. It appears that an advance of Rs.3,00,000/- has been paid in the presence of the witnesses in the Sale Agreement dated 10.12.2008 and the balance sum of Rs.8,75,000/- as per agreed condition has to be paid within three months from the date of Agreement dated 10.12.2008. 8. In the original written statement filed on 17.04.2009, the Revision Petitioner/Defendant in paragraph-6 has among other things averred that 'she has entered into a Sale Agreement with T. Kalayanasundaram as on 10.12.2008 to purchase an extent of Ac 5.31'. But the subsequent pleading/ additional written statement, sought to be projected by the Revision Petitioner/Defendant speaks of the Petitioner/Defendant mistakenly mentioning as if it is the agreement regarding Kalayanasundaram's land, which according to the Revision Petitioner has occurred by over sight. 9. In as much as the Petitioner/Defendant by filing I.A.No.246 of 2010 in O.S.No.103 of 2010 on the file of the trial Court has only sought permission of the trial Court to explain his case/further case inconsonance with the Sale Agreement dated 10.12.2008, this Court by taking a lenient and liberal view permits the Petitioner/Defendant to file the additional written statement, in the interest of justice and also because of another reason by allowing I.A.No.246 of 2010 to receive the additional written statement by the trial Court, no prejudice will be caused to the Respondent/Plaintiff. Viewed in that perspective, this Court disposes of the Civil Revision Petition without costs. 10. In the result, this Court disposes of the Civil Revision Petition by directing the Learned II Additional Subordinate Judge, Cuddalore, to receive the additional written statement filed by the Revision Petitioner/Defendant in I.A.No.246 of 2010. Also, this Court grants liberty to the Petitioner/ Defendant to let in oral and documentary evidence inconsonance with the Sale Agreement dated 10.12.2008, since the main suit is posted for the evidence of the Petitioner/Defendant's side. That apart, this Court also directs the trial Court to permit the Respondent/Plaintiff to file a reply statement to the reception of the additional written statement by the trial Court within one week from the date of receipt of a copy of this order. Taking note of the fact that the suit is in part heard stage, this Court, on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the Learned II Additional Subordinate Judge, Cuddalore, to dispose of the main suit in O.S.No.103 of 2010 pending on its file within a period of two months from the date of receipt of a copy of this order and report compliance to this Court, without fail. No costs. Consequently, the connected miscellaneous petition is closed.