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2014 DIGILAW 3114 (MAD)

Boopathy v. Palaniammal

2014-09-05

R.MALA

body2014
Judgment 1. Civil Revision Petition is filed against the fair and decreetal order dated 08.06.2012 in I.A.No.373 of 2012 on the file of the District Munsif Court, Sathyamangalam. 2. The revision petitioners herein as the plaintiffs filed a suit for declaration of sale deed dated 29.10.2008 which came into existence between the defendants shall not bind upon the plaintiffs and also for consequential injunction restraining the defendants, their men to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property and costs in respect of nine items of suit property. 3. The defendants filed the written statement and contested the same. During pendency of the suit, when the matter was posted for cross-examination of P.W.1, the first defendant came forward with an application in I.A.No.373 of 2012 under Order VIII Rule 9 of C.P.C., for reception of additional written statement. The trial Court, after hearing both sides, allowed the application, against which, the present revision petition is preferred by the plaintiffs. 4. Learned counsel for the revision petitioners submitted that the first defendant has not given any reason as to why she has not raised the defence as made in the additional written statement at an earlier point of time. In the additional written statement, the first defendant has given a new plea and that factum was not considered by the trial Court. Hence, he prayed for allowing of the revision petition. To substantiate his arguments, he relied upon the following decision: (i) 2000-1-L.W. 821 (Poongavanam Ammal v. Navaneetham Ammal); (ii) C.R.P.(PD)No.3012 of 2007, dated 31.07.2008 (P. Dhandapanni v. Cheran Chits Funds (P) Ltd); (iii) (Dr. M.N. Sambhavi (Rep. by her .. .. v. A. Rajagopal and others), dated 19.08.2005; (iv) (Ulaganathan v. Kumarasamy Chettiyar), dated 24.09.2002; (v) 2009 (4) CTC 201 (P.A. Jayalakshmi v. H. Saradha and others); (vi) (2002) 3 M.L.J. 259 (Kolandasamy v. Rathinam alias Rathinayal); (vii) (P.N. Deenadayalan v. Ramagiri Narasimhulu Chetty), dated 28.07.2005; 5. Resisting the same, learned counsel for the respondent would submit that the first defendant/respondent herein has not taken any inconsistent mutual destructive plea. In her affidavit, she has stated that she was not in a position to file the additional written statement in time. He would further submit that only P.W.1 evidence alone has been completed and now the suit was posted for further evidence on the side of the plaintiffs. In her affidavit, she has stated that she was not in a position to file the additional written statement in time. He would further submit that only P.W.1 evidence alone has been completed and now the suit was posted for further evidence on the side of the plaintiffs. Hence, the trial Court considered all those aspects in proper perspective and allowed the application. Therefore, he prayed for dismissal of the revision petition. 6. Considered the rival submissions made on both sides and perused the typed set of papers. 7. The revision petitioners herein as the plaintiffs filed a suit for declaration that the sale deed dated 29.10.2008 which came into existence between the defendants shall not bind upon the plaintiffs stating that the suit properties are self acquired properties of one Gurunathasamy Gounder and the first defendant's husband namely Dalapathy. As per the proceedings in I.P.No.9 of 1956, the property has been brought into auction and that the Gurunathasamy Gounder, who was the predecessor in title, was in possession and enjoyment of the same and he has prescribed the title by adverse possession. It is his separate property and he executed the Will dated 23.09.1991 bequeathed the property in favour of the plaintiffs and he died on 15.04.2002. So the plaintiffs have succeeded as legatees and they are in possession and enjoyment of the same. 8. The first defendant filed the suit in O.S.No.35 of 1996 on the file of the District Munsif Court, Sathiyamangalam (it was renumbered as O.S.No.51 of 1992 on the file of the Sub-Court, Gobichettipalayam), for partition and separate possession. At the intervention of the family members, during pendency of the above suit, the matter was settled and she received Rs.60,000/-relinquishing her right stating that she is not having any right over the suit property and filed a memo to that effect on 11.09.1997 and in pursuance of the memo, suit filed by the first defendant was dismissed. Now the defendants 2 to 9 attempted to interfere with their possession by creating the sale deed dated 29.10.2008 as if they purchased the suit property from the first defendant, the plaintiffs forced to file the suit for declaration and injunction. 9. Now the defendants 2 to 9 attempted to interfere with their possession by creating the sale deed dated 29.10.2008 as if they purchased the suit property from the first defendant, the plaintiffs forced to file the suit for declaration and injunction. 9. The first defendant filed the written statement and fairly conceded that the suit in O.S.No.51 of 1992 has been dismissed as withdrawn, for which, she put her signature, but she has not aware of the other suits in O.S.Nos.288 of 2008 and 314 of 2008. 10. The fourth and tenth defendants have also filed the written statements. During pendency of the suit, the first defendant filed the present application in I.A.No.373 of 2012 to permit the first defendant to file her additional written statement stating that the first defendant omitted to put some vital facts at the time of filing of written statement. 11. Now it is appropriate to consider the decision relied upon by the learned counsel for the revision petitioners: (i) In 2000-1-L.W. 821 (Poongavanam Ammal v. Navaneetham Ammal), wherein it was held that naturally when leave is sought for filing additional pleadings, petitioner will have to explain why the present contention was not raised on the earlier occasion. Para-9 is extracted hereunder: “9. It is true that defendant may be in a position to take inconsistent stand. But that is not the question that has to be decided in this case. Under Order 8, Rule 9 of Code of Civil Procedure, no pleadings after written statement filed can be received except with the leave of the Court. Naturally, when leave is sought for, petitioner will have to explain why the present contention was not raised on the earlier occasion. Pleadings cannot be filed piecemeal. Even if inconsistent stand could be taken, that does not follow that defendant can file written statement at any time as he chooses and even without showing sufficient cause.” (ii) In C.R.P.(PD)No.3012 of 2007, dated 31.07.2008 (P.Dhandapanni v. Cheran Chits Funds (P) Ltd), in para-6, it was held as follows: “6. Even though notices were served on the respondents and their names appeared in the cause list they have not chosen to enter appearance and hence this Court has proceeded with the case on merits. The affidavit filed in support of the application to file written statement along with counter claim does not disclose any particulars. Even though notices were served on the respondents and their names appeared in the cause list they have not chosen to enter appearance and hence this Court has proceeded with the case on merits. The affidavit filed in support of the application to file written statement along with counter claim does not disclose any particulars. Moreover, the reasons for such long delay in filing the additional written statement have also not been stated in the affidavit. By permitting the respondents/defendants to file additional written statement along with counter claim it would amount to prolonging of trial, complicating otherwise the smooth flow of the proceedings. Admittedly, the suit is of the year 1997 and after much delay, the abovesaid application came to be filed without disclosing the reasons for delay. The reasons stated in the affidavit filed in support of the application are vague. The reasons given by the trial Court that no prejudice would be caused in the event of allowing the application to file additional written statement along with the counter claim are unsustainable and it is not in accordance with the provisions of Order VIII Rule 6(A) of Civil Procedure Code.” In the above decision, the first defendant filed the written statement and thereafter, she filed the application for permitting her to file additional written statement with the counter claim. So it is not sustainable. So the above decision is not applicable to the facts of the present case, since she has not made any counter claim. (iii) In (Dr. M.N. Sambhavi (Rep. by her .. .. v. A. Rajagopal and others), dated 19.08.2005, wherein it was held that no speaking order has been passed. So it is appropriate to incorporate para-20, which runs as follows: “20. There is no speaking order in I.A. No. 180 of 2003 - allowing the Application to file Additional Written Statement. In the earlier Written Statement filed on 13.12.1987, only a right of common pathway has been put forth as defence. Entirely a new case has been introduced by filing the Additional Written Statement contending that the Devasthanam is the true owner of the Suit Property. The new plea put forth in Additional Written Statement, which is contradictory to the earlier one amounts to putting forth a new case. The Defendants cannot be allowed to file Additional Written Statement, which is likely to cause prejudice to the Plaintiffs. The new plea put forth in Additional Written Statement, which is contradictory to the earlier one amounts to putting forth a new case. The Defendants cannot be allowed to file Additional Written Statement, which is likely to cause prejudice to the Plaintiffs. No supplemental Written Statement could be allowed to be filed after the Trial has been and considerable evidence of Plaintiffs' side has been completed. If the Defendants are allowed to file the Additional Written Statement at this stage, it would completely raise a new point nullifying the earlier trial. Learned counsel for the Respondents/Tenants has relied upon number of decisions, wherein it has been held that Additional Written Statement even if contradictory to the original Written Statement could be received. In genuine cases where Additional Written Statements are filed without inordinate delay, the Applications to receive the Additional Written Statement could be allowed provided it does not introduce a new or inconsistent plea. In the case in hand, the Application in I.A. No. 180 of 2003 has been filed after the Trial has begun introducing entirely a new case. Considering the stage when the Application was filed and the nature of the defence put forth, the lower Court ought not to have allowed the Application to receive the Additional Written Statement. That too by a non-speaking order without indicating the reason for allowing the Application.” In the above decision, it was held that in the genuine cases, where additional written statements are filed without inordinate delay, the applications to receive the additional written statement could be allowed provided it does not introduce a new or inconsistent plea. But that order has been set aside, since no speaking order has been passed. So the above decision is not applicable to the facts of the present case. (iv) In (Ulaganathan v. Kumarasamy Chettiyar), dated 24.09.2002, in para-4, it is held as follows: “4. The learned Advocate for the revision petitioner in this case has pointed out that he has raised the plea of adverse possession/prescription in paragraph 12 of the written statement, and inspite of that he has got some apprehension that the additional written statement has got to be filed to raise the question of limitation as contemplated under Section 58 of the Limitation Act, and such apprehension appears to be unnecessary. Section 3 of the Limitation Act also states "Subject to the provisions contained in Sections 2 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." As such, the question of limitation can be raised even without necessary pleadings and the same is not barred under law. The only apprehension of the revision petitioner is that he will be prevented from raising the question of limitation in the appeal, and such apprehension is unwarranted as it has been pointed out, supra. In fact, in this case, the revision petitioner has raised the plea of limitation and the said question was considered by the trial court, and inspite of that the suit was decreed. It is always open for the revision petitioner/defendant to raise such a ground in the appeal and he would not definitely be precluded from raising such a ground in the appeal as he has already raised in the written statement itself. That in order to obviate the unnecessary apprehension of the revision petitioner, it is hereby made clear that the revision petitioner/defendant is entitled to raise the plea of limitation before the lower appellate court, if he chooses to do so. But the above decision is not applicable to the facts of the present case. Wherein he raised the plea of limitation, that has been decided by the trial Court and that has been disbelieved by the trial Court. During pendency of appeal, he raised a plea of limitation by way of filing additional written statement, wherein it was held that question of limitation is a question of law and it can be raised without pleadings. So that application was dismissed. (v) In 2009 (4) CTC 201 (P.A. Jayalakshmi v. H. Saradha and others), in para-10, it is held as follows: “10. Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. We may notice that one of the plaintiffs was examined on 1.3.2007. It is accepted at the bar that despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. We may notice that one of the plaintiffs was examined on 1.3.2007. It is accepted at the bar that despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.” wherein it was held that there cannot be any doubt or dispute that the Courts should be liberal in allowing applications for leave to amend pleadings, but it is also well settled that the Courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure. But the above decision is not applicable to the facts of the present case. Because in the case on hand, the application for amendment has not been filed and only the application for reception of additional written statement has been filed. (vi) In (2002) 3 M.L.J. 259 (Kolandasamy v. Rathinam alias Rathinayal), wherein it was held that the Court will have to necessarily consider the conduct of the party and stage of the litigation. Para-13 and 19 are extracted hereunder: “13. Only in that context, the Court has to exercise its discretionary powers in taking decision as to whether additional written statement has to be accepted or not. Under what circumstances leave is to be granted and how the discretion is to be exercised depend on the facts and circumstances of each case. While exercising discretion, the Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how far the opposite party will be put to hardship, etc. 19. Under what circumstances leave is to be granted and how the discretion is to be exercised depend on the facts and circumstances of each case. While exercising discretion, the Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how far the opposite party will be put to hardship, etc. 19. While dealing with this matter, for the purpose of exercising the discretionary powers under Order 8 Rule 9 C.P.C., this Court will have to necessarily consider the conduct of the party and stage of the litigation.” (vii) In (P.N. Deenadayalan v. Ramagiri Narasimhulu Chetty), dated 28.07.2005, wherein it was held that additional written statement cannot be received, if the new defence has been taken. It is appropriate to incorporate para-9, which runs as follows: “9. By a careful reading of the Additional Written Statement, it is clear that the Third Defendant has put forth a new set of facts and new defence by introducing a new case. In the supporting affidavit, no convincing reason has been stated for not putting forth the above facts and defence in the earlier Written Statement. In the affidavit, the First Defendant has alleged that those facts have been omitted to be pleaded. It is relevant to note that the First Defendant is not an illiterate, but a practising Advocate. He cannot be allowed to take shelter that it has been omitted to be mentioned. In the absence of convincing reasons for receiving the Additional Written Statement, at the stage of trial the Additional Written Statement cannot be entertained. In AIR 1958 MADRAS 383 (Nanjan v. Selai), it is held thus:- "If the party wants to file an additional written statement, he has to file a petition stating the reason why he failed to say these things in the original written statement, and what excuse there is for allowing him to file an additional written statement at that stage. Then the other side has to be given an opportunity to oppose the petition and contend that such additional written statement should not be entertained at that stage. Then the Court has to give its decision as to whether the additional written statement is to be admitted or not". Then the other side has to be given an opportunity to oppose the petition and contend that such additional written statement should not be entertained at that stage. Then the Court has to give its decision as to whether the additional written statement is to be admitted or not". Referring to that Judgment in 2000-I-L.W. 821 (Poongavanam Ammal v. Navaneetham Ammal), Justice S.S. Subramani, has held thus:- "It is true that defendant may be in a position to take inconsistent stand. But that is not the question that has to be decided in this case. Under Order 8, Rule 9 of Code of Civil Procedure, no pleadings after written statement filed can be received except with the leave of the Court. Naturally, when leave is sought for, petitioner will have to explain why the present contention was not raised on the earlier occasion. Pleadings cannot be filed piecemeal. Even if inconsistent stand could be taken, that does not follow that defendant can file written statement at any time as he chooses and even without showing sufficient cause." But the above decision is not applicable to the facts of the present case. Because in the above decision, the first defendant is an advocate, after long time he put forth new case, so this Court has held that he is not entitled to file additional written statement. 12. According to the learned counsel for the respondent, the respondent/first defendant is an illiterate and she filed the application for reception of additional written statement, when the evidence of P.W.1 was closed and the matter was posted for defendants' side arguments. Further, the suit is of the year 2009 and the application was filed in the year 2012. In the affidavit, it was stated that some important particulars have not been pleaded in the written statement, for which, she filed the application for reception of additional written statement. Under such circumstances, I am of the view, the reason assigned by her to leave to file additional written statement is sufficient. 13. Now this court has to decide whether the defence raised in the additional written statement is a mutual destructive defence as that of in the original written statement. Under such circumstances, I am of the view, the reason assigned by her to leave to file additional written statement is sufficient. 13. Now this court has to decide whether the defence raised in the additional written statement is a mutual destructive defence as that of in the original written statement. On perusal of additional written statement filed by the first defendant, it was stated that the suit is bad for non-joinder of necessary parties (i.e.) Ramasamy Gounder, S/o Kuppanna Gounder and Ammasai Gounder, S/o Rakkiya Gounder, who purchased the suit property in I.P.No.9 of 1956. The second defence is that the first defendant executed the power of attorney on 04.09.1997 in favour of the mother of the plaintiffs with the instruction not to do anything and subsequently, she cancelled the same on 27.11.2008. But in her earlier written statement, the first defendant has not mentioned the power of attorney. It is not the case of the plaintiffs that on the basis of the power of attorney executed by the first defendant in favour of the plaintiffs' mother, she sold the property. In such circumstances, the trial Court rightly allowed the application for reception of additional written statement for effective adjudication of the suit and hence, the impugned order passed by the trial Court does not suffer any material irregularity and there is no need to interfere with the same. Accordingly, this revision petition is hereby dismissed. 14. In the result, the Civil Revision Petition is dismissed after confirming the fair and decreetal order dated 08.06.2012 in I.A.No.373 of 2012 on the file of the District Munsif Court, Sathyamangalam. No costs. Consequently, connected Miscellaneous Petition is closed.