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2014 DIGILAW 2661 (MAD)

M. Chockalingam v. Leo Felix Louis

2014-08-18

V.M.VELUMANI

body2014
Order 1. These Civil Revision Petitions have been filed to set aside the fair and decretal orders dated 10.04.2014, made in I.A. Nos. 827 and 828 of 2013 in O.S. Nos. 106 and 107 of 2007 on the file of Sub-Court, Pudukkottai. 2. The revision petitioner herein is the first defendant, whereas the respondents in both the civil revision petitions are the plaintiff in the suits in O.S. Nos. 106 and 107 of 2007 on the file of Sub-Court, Pudukkottai, respectively. 3. The respondents filed both the suits for decree of specific performance of agreement of sale, dated 04.05.2006. After framing issues, the suit was posted for trial. The evidence on behalf of the respondent/plaintiff was closed on 17.01.2013. The suits were posted for the evidence on behalf of the petitioner on 29.01.2013. After taking adjournments, the petitioner filed an application in I.A. No. 701 of 2013, for obtaining expert opinion in respect of Ex.P3, undisputed document marked in the suit. The said application was dismissed on 20.09.2013. After dismissal of the said application, the petitioner in both the civil revision petitions has come out with present applications in I.A. Nos. 827 and 828 of 2013, for permission to file additional written statements in both the suits. According to the petitioner, in the written statement already filed by him, certain important facts were not mentioned by his earlier counsel and therefore, his counsel did not conduct the case properly. Therefore, after engaging present counsel, the additional written statement setting out the correct facts were prepared. Unless permission is granted to file additional written statement, the petitioner would be put to irreparable loss. The facts mentioned in the additional written statement were omitted to mention in the original written statement by inadvertence. The respondents in both the civil revision petitions filed counter affidavit opposing the said applications. According to the respondents, the applications are belated consisting of contradictory statement to that of the original written statement. In the additional written statement, new cause of action has been introduced. This cannot be entertained at this belated stage. The learned Judge considered all the materials on record and the arguments of the learned counsel for the parties, dismissed both the applications holding that the same has been filed only with a view to drag on the proceedings. Against the said order of dismissal, the petitioner has filed the above civil revision petitions. 4. The learned Judge considered all the materials on record and the arguments of the learned counsel for the parties, dismissed both the applications holding that the same has been filed only with a view to drag on the proceedings. Against the said order of dismissal, the petitioner has filed the above civil revision petitions. 4. Heard Mr. K.N. Govardhanan, learned counsel appearing for the revision petitioner and Mr. C. Vakeeswaran, learned counsel appearing for the respondents. 5. The learned counsel for the petitioner and the respondents reiterated the averments stated in the affidavit and in the counter affidavit. 6. The learned counsel for the petitioner in addition to the averments in the affidavit, argued that the learned Judge did not properly appreciate the facts and law and erred in dismissing the applications. In support of his submission, he relied on the following Judgments: (i) T.R. Govindasamy and Others v. T.R. Natarajan and Others [ 2004 (3) MLJ 603 ], wherein in paragraph Nos.15 and 16 it has been held as follows:- "15. O.8, Rule 9, C.P.C. gives wide power to Courts to give permission to defendant at any time, but fixing the maximum days for presenting the same. Except this restriction, I do not find any other restriction in granting leave for the defendants, to file additional written statement. 16. The trial Court, without considering the effect of the original written statement and the additional written statement, as well as the scope of O.8, Rule 9, C.P.C., dismissed the application, only on technical grounds, probably that the petition is highly belated. True, the defendants have filed this application at the belated stage, when P.W.1 is in the box. This should not be the sole reason to deprive the right of the defendants, to take the defence available, which came into light subsequently, as pleaded in the affidavit. By providing this opportunity to the defendants, the right of the plaintiffs is not going to be prejudiced, that too in view of the admission made by them. In this view of the matter, I am constrained to conclude, that the trial Court has committed an error, in not giving the leave to the defendants, to file additional written statement and that error has to be rectified by allowing the C.R.P., as well as by allowing the I.A. seeking leave to file additional written statement. In this view of the matter, I am constrained to conclude, that the trial Court has committed an error, in not giving the leave to the defendants, to file additional written statement and that error has to be rectified by allowing the C.R.P., as well as by allowing the I.A. seeking leave to file additional written statement. ....." (ii) P.N. Amirthavalli and others v. S.V. Saravanan [2010 (1) MWN (Civil) 653], wherein in paragraph No.25, it has been held as follows:- "25. If the facts projected earlier in the written statement have not reflect the true state of defence projected by the respondent/defendant, then the leave may be granted by a Court of law to take into account of the averments made in the Additional written statement and that too when both the factual and legal pleas are raised, since there is no embargo in law to receive the same in the processual system of jurisprudence by adopting a justice oriented approach to sub serve the ends of justice and to do complete justice to the parties. Further, in the absence of prejudice leave will normally be granted to file subsequent pleading liberally. Really speaking, Order 8 Rule 9 of Civil Procedure Code invests the Court with the widest possible discretion and enables it to accept the Additional written statement. It is to be pointed out that the Civil Law does not altogether prohibit inconsistent pleas." (iii) Subramanian and Others v. Jayaraman, 1999 (III) CTC 52 , wherein in paragraph No.9, it has been held as follows:- "9. It is not the intention of the legislature that no pleading subsequent to the written statement should be allowed other than for reasons given therein. But the intention is that without the leave of the Court, no pleading subsequent to the written statement shall be presented. Hence, it goes without saying that the subsequent statement or additional statement could be filed only with the leave of the Court on such terms, as the Court thinks fit. The approach of Law in permitting the Court to grant leave in such cases is positive. Hence, it goes without saying that the subsequent statement or additional statement could be filed only with the leave of the Court on such terms, as the Court thinks fit. The approach of Law in permitting the Court to grant leave in such cases is positive. But, the Court while granting the leave could direct the petitioner to comply with certain terms that the Court thinks fit and hence absolutely there is no impediment or hurdle or legal barrier putforth by the Rule in allowing any additional statement subsequent to the written statement and the only shot provided in the arms of the Court for granting leave is that it could allow the application on such terms as it thinks fit. The same power could also be suo motu exercised by the Court as per the concluding part of the Rule. The Rule has been liberally construed so far as the Court granting the leave to present such additional statements and discretion is given to the Court either to allow or to reject and while allowing it could do the same on such terms as the Court thinks fit. Therefore, it could be safely concluded that in all such cases, wherein the defendant approaches the Court with an application under Order 8 Rule 9 of the Civil Procedure Code praying to grant leave, Courts are expected to be liberal in granting the leave but of course on terms as the Court thinks fit in the circumstances of the individual case." 7. The learned counsel for the respondents reiterated all the averments made in the counter affidavit and argued that the order of the learned Judge is valid and legal. He referred to the original written statement and the additional written statement now sought to be filed and pointed out the inconsistency in the written statement. The learned counsel for the respondents further argued that the petitioner is trying to withdraw the admission made in the written statement. 8. The learned counsel for the respondents relied on the Judgment reported in 2007 (1) CTC 586 [R.S. Nagarajan v. R.S. Gopalan and Others], wherein it has been held that the defendant cannot raise mutually destructive pleas. In the case on hand, the petitioner now tries to introduce altogether a new case by way of filing an additional written statement. That cannot be allowed. In the case on hand, the petitioner now tries to introduce altogether a new case by way of filing an additional written statement. That cannot be allowed. The Court below has rightly dismissed the application filed by the petitioner and I do not find any error of jurisdiction or illegality in the said order. 9. On a perusal of the materials available on record, it is seen that after closing the evidence on behalf of the respondents, the petitioner took time for let in evidence on his behalf. At this stage, he filed the application seeking for expert opinion with regard to the documents, which are not disputed and the said application was dismissed. Thereafter, the petitioner has come out with the applications in I.A. Nos. 827 and 828 of 2013, seeking for permission to file additional written statement. The reason given by the petitioner for filing additional written statement is not acceptable. The contention of the learned counsel for the petitioner that some important facts was not mentioned by inadvertence in the original written statement is not acceptable. A reading of the written statement and the additional written statement clearly shows that the petitioner is trying to withdraw the admissions made in the written statement. Further, the present application has been filed after commencement of the trial and after closing the evidence on behalf of the respondents. The said application at this belated stage cannot be entertained. The Judgments relied on by learned counsel for the petitioner do not advance the case of the petitioner and are not applicable to the facts of these present cases. On the other hand, the Judgments relied on by the learned counsel for the respondents squarely applies to the facts of these cases. The learned Judge has considered all the materials on record and has given valid reason for dismissal of the said application. Therefore, there is no reason to interfere with the orders, dated 10.04.2014, passed in I.A. Nos. 827 and 828 of 2013 in O.S. Nos. 106 and 107 of 2007, by the learned Sub-Judge, Pudukkottai. Hence, both the civil revision petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.