Madras High Court
M.Ganesan vs M/S Soundariya Leasings on 3 March, 2006
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/03/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CIVIL REVISION PETITION(PD)(MD) No.483 of 2005 and C.M.P.(MD)No.3755 of 2005 M.Ganesan .. Petitioner vs M/s Soundariya Leasings rep. by its Partner 762, Jawahar Bazaar Karur-639 001 .. Respondent This civil revision petition is filed under Article 227 of the Consitution of India, praying for the reasons stated therein. !For petitioner ... Mr.S.Muthu Venkatesan ^For respondent ... Mr.S.Anand Chandrasekar :O R D E R
This revision petition is filed against the order and decretal order dated 6.4.2005 made in I.A.No.88 of 2005 in O.S.No.117 of 2000 on the file of the Subordinate Judge, Karur.
2. Learned counsel appearing for the petitioner requests for another adjournment but sufficient adjournments have been given in this petition and it was finally posted on 2.1.2006. At the request , it was again posted to 22.2.2006. Hence, I am not inclined to give any further adjournment in this case.
3. Heard the learned counsel for the petitioner as well as the respondent.
4. This civil revision petition has been preferred against the order passed in I.A.No.88 of 2005 on the file of the Subordinate Judge, Karur. The said I.A.No.88 of 2005 was filed under Section 151 C.P.C. by the petitioner with a prayer to receive an additional written statement.
5. In the affidavit filed in support of the petition, the petitioner had stated that the petitioner had filed his written statement on 25.7.2002 and that due to some of the documents were mingled with some other documents in his office, he is not able to trace out the documents early and on that score, he prayed for filing an additional written statement and hence it cannot be allowed.
6. The respondent had filed a counter contending that in the earlier written statement the defendant had raised a plea that he has not executed the promissory notice and borrowed any amount from the plaintiff and in the additional written statement, the defendant had introduced a new case which will alter the nature and character of the original written statement and hence it cannot be allowed.
7.No oral or documentary evidence was let in by either side before the trial Court. After going through the averments in the affidavit filed by the petitioner and the counter statement filed by the respondent, the learned Subordinate Judge has come to a conclusion after following the decision reported in N.Srinivasan-vs- Muthammal( 1998(II)CTC 94) that by way of additional written statement, the defendant had tried to put forth inconsistent plea causing prejudice to the plaintiff, the petitioner/defendant should not be allowed to file an additional written statement and consequently dismissed the petition without costs. Aggrieved by the order of the learned Subordinate Judge, karur in I.A.No.88 of 2005 in O.S.No. 117 of 2000, the defendant has preferred this revision petition.
8. Now the point to be decided in this revision petition is whether the order passed by the learned Subordinate Judge in I.A.No.88 of 2005 in O.s.No.117 of 2000 dated 6.4.2005 is liable to be set aside for the reasons stated in the revision petition?
9.The point:
The defendant has already filed his written statement in the suit on 25.7.2002. In the said written statement, the defence taken by the defendant was that he had not executed the suit promissory note and borrowed any amount from the plaintiff. But in the additional written statement, the defendant had introduced a new case by saying that the signature in the suit promissory note is not that of him but it was a rank forgery . Now the question is whether such an inconsistent and alternative pleas can be allowed to be taken by way of filing an additional written statement. Under Order 8 Rule 8A of Mulla the Code of Civil Procedure (Sixteenth Edition) at page 2001 it has been stated that "The additional written statement should not set up a totally new case or state facts at direct variance with the original written statement so as to completely change the issue (Douglas v Collector of Benaras(1851)5MIA 271)"
The learned Subordinate Judge has relied on N.Srinivasan-vs- Muthammal( 1998(II)CTC 94) . In that case also, in the original written statement filed by the defendant, the defendant had taken a defence that the signature found in the promissory note was not of his own. The defendant had taken a plea that he has not executed any promissory note on 17.11.1992 but subsequently in the additional written statement, he wanted to introduce a new plea by saying that the signature was a rank forgery. While deciding the said revision, this Court had observed as follows:
" In the proposed additional written statement the defendant/petitioner contends that it was only when he was in the witness box he had seen the suit promissory note and found that the signature in the promissory note was not his own, and that therefore, he came to realise that the suit promissory note was a rank piece of forgery and that therefore, the plaintiff was bound to prove the execution and validity of the suit promissory note. He has further pleaded that inasmuch as he had seen the promissory note only when he was tendering evidence as D.W.1, he has not cross examined the plaintiff with reference to the said allegation. In the affidavit filed in support of the petition for filing written statement also the defendant had reiterated the same allegations and that he came to know of the forgery in the promissory note only on 27.1.1997. It is further pleaded that if he is not permitted to file the additional written statement he will be put to loss and harship..... . . . . . . . . . A Division Bench of this Court in Subramania Iyer-vs- Hitchock wherein it was held that the principles relating to the disposal of an application for amendment of a written statement raising a plea inconsistent with an earlier admission in the original written statement was made by mistake and that in such a case the Court should be liberal in allowing the amendment. But where there was a reason to think that the earlier admission was not made by mistake and that the defendant deliberately changes his mind later, he should not be allowed to amend. On the basis of the above said rulings, Mr.Raghavachari contends that the objections raised by the plaintiff in the present case on the ground of delay as well as that the proposed amendment was contradictory to the stand taken in the original statement, cannot hold good and that the proposed amendment should be allowed. To appreciate the contentions raised by the counsel, it has to be seen that the present suit is on a promissory note in which certain statutory presumptions arise in favour of the plaintiff. Apart from the presumption which is raised under Section 114(C) of the Indian Evidence Act, Section 118 of the Negotiable Instruments Act, 1981 also arises certain statutory presumptions. Under Section 118 of the Negotiable Instruments Act dealing with the presumption as to the Negotiable Instruments Act, it is held that until the contrary was proved the presumption would arise in respect of the consideration , as to the date of the execution, as to the time of acceptance and transfer etc., Apart from Section 118, under Section 20 of the Negotiable Instrument Act, a further presumption is raised in respect of the negotiable instrument signed and delivered by a person either wholly blank or having written thereon, an incomplete negotiable instrument. In the present case, as could be seen from the observation of the learned Distrct Munsif, D.W.1 has also claimed that he signed on an incomplete and unfilled promissory note. Therefore, in the present casewe are dealing with certain statutory presumptions which accrue in favour of the plaintiff " . . . . . . . .
10. After referring Heeralal-v-Kalyan Mal and others (1997(10) Supreme 56, Akshaya Restaurant-v- Anjanappa and another (1995 Supp(2)SCC 303, Modi Spinning and Weaving Mills Co., Ltd and another-v-Ladha Ram and Co.,(1997 (1)SCR 728, the learned Judge has come to a conclusion that when the amendment in the written statement was of such a nature as to displace the plaintiff's case, it could not be allowed as ruled by a three members Bench of this Court.
11. The learned Judge has further observed that this aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the learned Judge took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a diametrically opposite view and following the Heeralal-v- Kalyan Mal and others(1997 (10)Supreme 56, the learned Judge has observed that an amendment which was sought for in the proposed additional written statement was of such a nature would displace the plaintiff's case,it cannot be allowed.
12.No such amendments to written statement putting forth inconsistent or alternative plea which could displace the plaintiff's case and cause him irretrievable prejudice, can be allowed and ultimately the petition filed by the defendant permitting him to file an additional written statement was dismissed by the learned Judge on the ground that if it is allowed will amount to raise inconsistent or alternative plea causing irretrievable prejudice to the plaintiff. So in this case, the abovesaid dictum squarely applies to the present facts of the case wherein also the defendant wants to introduce an inconsistent plea by filing additional written statement which was rightly negatived by the learned Subordinate Judge by dismissing I.A.No.88 of 2005 , I do not find any reason to interfere with the findings of the learned Subordinate Judge in I.A.No.88 of 2005 in O.S.No.117 of 2000. Hence I hold on the point that the order passed in I.A.No.88 of 2005 in O.S.No.117 of 2000 dated 6.4.2005 on the file of the Subordinate Judge, Karur need not be set aside for the reasons stated in the revision petition. The point is answered accordingly.
13. In the result, the revision petition is dismissed. No costs. Connected C.M.P.No.3755 of 2005 is also dismissed.Learned Subordinate Judge, Karur is directed to expedite the trial of the suit and dispose of it within a period of two months from the date of receipt of a copy of this order.
sg To The Subordinate Judge Karur