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2014 DIGILAW 2477 (MAD)

Muthuramu v. A. Muthulakshmi

2014-08-08

V.M.VELUMANI

body2014
Judgment : 1. This civil revision petition has been filed to set aside the order, dated 22.12.2009, made in I.A.No.423 of 2009 in O.S.No.175 of 2004 on the file of District Munsif Court, Nilakottai. 2. The revision petitioners herein are the defendants 1 and 2, whereas the respondents are the plaintiffs in the suit in O.S.No.175 of 2004 on the file of District Munsif Court, Nilakottai. 3. The respondents filed the suit for declaration and other relief. The petitioners filed written statement denied the allegations made in the plaint. In the written statement, the petitioners reserved their right to file additional written statement. Based on the pleadings, issues were framed and the trial was commenced. P.W.1 was examined on the side of the respondents and was cross-examined in part by the petitioners. Subsequently, the petitioners took time for further cross-examination of P.W.1. But the petitioners did not appear either in person or through their counsel. Therefore, an ex-parte decree was passed. The petitioners filed the application to set aside the ex-parte decree and the same was allowed on payment of costs. After paying the cost, the petitioners filed applications in I.A.No.423 of 2009, for permission to file additional written statement. The first petitioner has stated that due to his work, he is often going to Thiruppur and the written statement could not be filed with full particulars and entire defence was not taken at the time of filing of the written statement. Further, the respondents were promising to settling the matter, but contrary to the talks of settlement, they are proceeding with the suit. Therefore, in the interests of justice, additional written statement must be taken on file. 4. The respondents denied all the allegations made by the petitioners and stated that only to drag on the proceedings and to fill up the lacunae, the petitioners filed the present application. After chief- examination and cross-examination of P.W.2, this application has been filed and therefore, the respondents prayed for dismissal of the application on the ground of delay. 5. The learned Judge after considering the materials on record, dismissed the application on the ground that the petitioners have filed the application after three years of filing of the suit, main witness on behalf of the respondents have been examined and the documents have been marked, the present application has been filed to set right the evidence, which are against them. The learned Judge also held that they ought to have filed their entire defence in the original written statement itself. As against the said order, the present civil revision petition is filed. 6. Heard Mr.P.Thirumahilmaran, learned counsel appearing for the revision petitioners and Mr.J.Mathesh, learned counsel appearing for the respondents. 7. In support of his submissions, the learned counsel for the petitioners relied on the following Judgments: (i) Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and Others reported in 2009 (7) MLJ 1081 (SC), wherein at paragraph Nos.7 and 8, it has been held as follows:- "7. Having heard the learned counsel for the parties and after going through the additional counter statement as well as the original counter statement and the application for fixation of fair rent and other materials on record, we are of the view that the High Court was not justified in interfering with the concurrent orders of the Rent Control Authorities in the exercise of its revisional power. A plain reading of the impugned order of the High Court would show that two grounds were given by the High Court to reject the application for acceptance of the additional counter statement filed by the appellant. The first ground was that the appellant had filed a belated application for acceptance of an additional counter statement when examination of P.W.1 was already over. So far as this ground is concerned, we do not find that delay is a ground for which the additional counter statement could not be allowed, as it is well settled that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, delay is no ground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by costs. That apart, the delay in filing the additional counter statement has been properly explained by the appellant. The averments made in the additional counter statement could not be raised by the appellant earlier since the appellant was under the impression that the lease agreement was destroyed in a fire accident and that he incidentally discovered the lease files in an old trunk only in October 1996 while he was cleaning the house for pooja celebration. The averments made in the additional counter statement could not be raised by the appellant earlier since the appellant was under the impression that the lease agreement was destroyed in a fire accident and that he incidentally discovered the lease files in an old trunk only in October 1996 while he was cleaning the house for pooja celebration. This explanation, in our view, cannot be rejected. Therefore, the first ground on which the additional counter statement sought to be rejected by the High Court in the exercise of its revisional power, in our view, cannot be sustained. The second ground on which the High Court had interfered with the concurrent orders of the Tribunal below in accepting the additional counter statement was that a new plea was raised in the same in respect of which there was no slightest basis in the original counter statement filed by the appellant. According to the High Court, the plea that vacant land was let out to the appellant is a fundamental alteration of the pleadings already put forth by the appellant and the appellant cannot be permitted to introduce totally a new case. The additional counter statement alleging that there was written agreement and that the appellant is only a lessee of vacant site introduces totally a new case which would totally displace the landlord. The High Court held that such a new plea cannot be permitted to be taken by permitting the appellant to file additional counter statement. In our view, this is also not a ground for which the High Court could interfere with the concurrent orders of the Rent Control Tribunal and reject the application for permission to file additional counter statement. 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 Balasaheb Swami and Others v. Kiran Appaso Swami and Others (2007) 5 SCC 602 : (2007) 4 MLJ 99] . Therefore, we are unable to agree with the High Court on this ground as well. [See Usha Balasaheb Swami and Others v. Kiran Appaso Swami and Others (2007) 5 SCC 602 : (2007) 4 MLJ 99] . Therefore, we are unable to agree with the High Court on this ground as well. It is also well settled that the Courts should be more generous in allowing the amendment of the counter statement of the defendant then 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. As noted herein earlier, the only ground on which the High Court had rejected the acceptance of the additional counter statement was (1) by filing of such additional counter statement, the appellant was introducing a new case; and (2) the entire trial was to be reopened causing great prejudice to the respondents whose examination was completed. It was also observed by the High Court that the appellant cannot be able to take such inconsistent plea by filing additional counter statement after cross-examination of the appellant. In our view, the High Court was in error in interfering with the concurrent orders of the Rent Control Tribunal, as from the fact stated we find that no prejudice was caused to the respondents and even if some prejudice was caused that could be compensated by cost. As noted herein earlier, the appellant had already stated in his application for acceptance of additional counter statement the reasons for taking such new plea viz., he could trace out the lease deed pertaining to the lease only when he was cleaning the boxes. The respondents have also not disputed as to the existence of the lease deed only they are disputing the filing of the additional counter statement at such a belated stage. The respondents have also not disputed as to the existence of the lease deed only they are disputing the filing of the additional counter statement at such a belated stage. This being the position, we are of the view that even if the examination of PW-1 or his cross-examination was over, then also, it was open to the Court to accept the additional counter statement filed by the appellant by awarding some cost against the appellant. It is also well settled that while allowing the additional counter statement or refusing to accept the same, the Court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. As noted herein earlier, by filing an additional counter statement in the present case, in our view, would not cause injustice or prejudice to the respondents but that would help the Court to decide the real controversy between the parties. In our view, the High Court was, therefore, not justified in rejecting the application for permission to file additional counter statement as no prejudice could be caused to the respondent which would otherwise be compensated in terms of cost. 8. There is another aspect of the matter. It is well settled that the High Court in the exercise of its revisional jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, could interfere with the concurrent orders of the Tribunals below only if it finds that the findings of the Tribunals below were either perverse or arbitrary, irregular or improper, but if the High Court finds that the findings of the Tribunals below are based on correct application of the principles and in any way cannot be said to have acted illegally and with material irregularity, in that case it cannot be said that the High Court was entitled to interfere with the concurrent orders passed by the Tribunals below in accepting the application for additional counter statement filed by the appellants. In our view, the High Court was also not justified to interfere with the concurrent orders of the Tribunals below, as we find that the Tribunals below, on consideration of the counter statement as well as the additional counter statement and the application for fixation of rent and other materials on record, accepted the additional counter statement in its discretion and therefore, it was not open to the High Court to interfere with the same in the absence of any perversity or arbitrariness in such findings of the Tribunals below. (See Usha Balasaheb Swami and Others v. Kiran Appaso Swami and others (supra))" (ii) Thiyagarajan Vs. Manivannan reported in 2007 (7) MLJ 444 , wherein at paragraph Nos.17 to 19, it has been held as follows:- "17. In the above decision, this court held that Order 8, Rule 9 C.P.C. does not say that no application for receiving the additional written statement should be allowed after the trial has commenced and Under Order 8, Rule 9 C.P.C., wide discretion is given to the Court to give a chance to the parties to agitate their rights even raising subsequent plea for which the Court should not be rigid and the Court should exercise their discretion liberally when it does not affect the rights of the parties. 18. If the law laid down by this court in the above decisions is applied to the facts of the present case, I may have to necessarily hold that the trial court is wrong in rejecting I.A.No.247/2004 filed under Order 8, Rule 9 C.P.C. 19. The trial Court has found fault with the petitioner/defendant that the application is belated one and the same cannot be entertained after framing the issues and when the suit is in the trial stage. These findings are obviously erroneous and are not sustainable in view of the proposition laid down by this court in the above decisions." (iii) E.O.Mohammed Ali Vs. Dessi Ammal @ Jessima Beevi and Others reported in 2010 (1) TLT 63, wherein at paragraph No.7, it has been held as follows:- "7. It is well settled principle of law as held by judgments referred by the learned counsel for the petitioner that an application seeking the filing of additional written statement will have to allowed liberally and in the interest of justice. It is well settled principle of law as held by judgments referred by the learned counsel for the petitioner that an application seeking the filing of additional written statement will have to allowed liberally and in the interest of justice. In the present case, the Court below has not given any finding that the stand taken in the additional written statement is inconsistent or mutually destructive. The only reason for rejection is that of delay and introducing a new case. A reading of the written statement filed earlier and the additional written statement filed would show that no inconsistent stand has been taken, but what is sought to be introduced in the additional written statement is the facts which has not been mentioned earlier in the written statement. In such a contingency, it cannot be said that the application filed by the petitioner would prejudice the interest of the respondents. Ultimately the suit is to be decided on the basis of the evidence both documentary and oral to be adduced by the parties. Hence in order to adjudicate the dispute between the parties full hearing coupled with proper opportunities should be given to the parties. The delay in filing the application itself cannot be a ground for rejection, more so when the petitioner is not able to get those particulars earlier. " (iv) Muthuraman Vs. Muthukumaran reported in 2007 (5) CTC 722 , wherein at paragraph No.7, it has been held as follows:- "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 statement that he was away on the date, when the said promissory note was alleged to have been executed is only supplementary and does not introduce a new case other than what was pleaded earlier. 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 statement that he was away on the date, when the said promissory note was alleged to have been executed is only supplementary and 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." 8. From the above Judgments, it is clear that the Courts must be liberally in considering the application for permission to file additional written statement and should not be dismissed on the ground of delay or commencement of the trial. The Court must consider whether the additional written statement is contrary to original written statement and whether injustice would be done to the other party. If there is no contradiction and injustice is caused to the other party, the Courts have wide discretion to give a chance to the parties to agitate their rights and the Court should not be rigid and exercise their discretion liberally. 9. Applying the principles laid down in the above said Judgments to the facts of the present case, it is seen that there is no contradiction between the original written statement and the additional written statement, which is sought to be filed, the learned Judge has not considered this aspect and also has not considered as to whether permitting the petitioner to file additional written statement would cause injustice to the respondents. The learned Judge ought to have exercise this discretion liberally and ought to have granted an opportunity to the petitioners to agitate their right to the full extent. 10. Therefore, I am inclined to set aside the order of the trial Court and permit the petitioners/defendants 1 and 2 to file the additional written statement in O.S.No.175 of 2004 on condition that they should pay a sum of Rs.3,000/-directly to the respondents/plaintiffs within a period of two weeks from the date of receipt of copy of this order. 11. It is made clear that if the cost of Rs.3,000/-is not paid within the time stipulated herein, the Civil Revision Petition will stand automatically dismissed without further reference to the Court. 12. 11. It is made clear that if the cost of Rs.3,000/-is not paid within the time stipulated herein, the Civil Revision Petition will stand automatically dismissed without further reference to the Court. 12. This Civil Revision Petition is allowed in the above terms. No costs. Consequently, connected Miscellaneous Petition is closed.