Madras High Court
Chinnammal vs Prakash on 2 March, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICUATRE AT MADRAS
DATED: 02.03.2015
CORAM:
THE HON'BLE MR.JUSTICE K.KALYANASUNDARAM
CRP(PD)No.868 of 2015
and
M.P.No.1 of 2015
Chinnammal : Petitioner/Defendant
vs.
Prakash
rep by his Power Agent
Eswaran : Respondent/Plaintiff
Prayer:- Civil Revision is filed under Article 227 of the Constitution of India, against the fair and decreetal order, dated 09.01.2015 made in I.A.No.614 of 2014 in O.S.No.13 of 2013 on the file of the Subordinate Judge, Perundurai.
For Petitioner : Mr.C.Munusamy
O R D E R
This civil revision is directed against the order passed in I.A.No.614 of 2014 in O.S.No.13 of 2013, dated 09.01.2015 by the Sub Judge, Perundurai.
2.The respondent had instituted a suit in O.S.No.13 of 2013 before the Sub Court, Perundurai against the petitioner for recovery of Rs.1,78,386/- with future interest.
3.The case of the respondent is that he entered into an agreement of sale with the petitioner on 28.06.2012 and in pursuance of the agreement, he paid Rs.1,70,000/- as advance and thereafter, the respondent was always ready and willing to perform his part of contract, but the petitioner did not come forward to execute the sale deed.
4.The petitioner has filed her written statement admitting the execution of the sale agreement, dated 28.06.2012 and the receipt of Rs.1,70,000/- as advance, however, disputed the readiness and willingness of the respondent/plaintiff. She has further stated that in view of default clause contained in the agreement of sale, the plaintiff is not entitled for return of the advance amount.
5.The suit was posted in the special list on 06.01.2014 and PW1 was cross examined in chief on 20.01.2014 and he has also marked Exs.P1 to P9. Even before the commencement of the trial, the suit was referred to Lok Adhalat and it was sent back, as the matter was not compromised. From 23.01.2014, the suit was adjourned on so many occasions for the cross examination of PW1. While so, on 27.10.2014, the petitioner chose to file an application I.A.No.614 of 2014 under Order 8 Rule 9 CPC and section 151 of CPC seeking permission to the court to file an additional written statement.
6.The petitioner has averred in the affidavit filed in support of the petition that now only when she was preparing for cross examination of PW1, some important points are left out and those facts are very much important to decide her case. The application was opposed by the respondent by filing a detailed counter. The trial court dismissed the petition. Aggrieved by the order, the present revision is filed.
7.Mr.C.Munusamy, learned counsel for the petitioner submitted that the order suffers from material irregularities and if allowed to stand would cause immense hardship and irreparable loss to the petitioner; that the court was empowered to order permitting the parties to file additional pleadings at any stage of suit in order to avoid miscarriage of justice and the application for amendment is filed with valid grounds and the same has to be allowed in order to do complete justice.
8.In support of his contention, the learned counsel has relied upon the following decisions:-
1.In the case of Baldev Singh and others vs. Manohar Singh and another [(2006)6 SCC 498).
2.In the case of Thiyagarajan vs. Manivannan [2007-1-LW-429];
3.P.Saraswathi vs. C.Subramanian [2013-5-L.W. 639].
9.In the case of Baldev Singh and others vs. Manohar Singh and another [(2006)6 SCC 498), the Hon'ble Apex Court has held as follows:-
17.Before we part with this order, we may also notice that proviso to Order 6 Rule 16 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appear that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of document and addressing of arguments. As noted herein before, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.
10.In the case of Thiyagarajan vs. Manivannan [2007-1-LW-429], this court has held as follows:-
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.
20.Trial court is also wrong in holding that a new case has been set up by the petitioner/defendant in the additional written statement. I have already referred to the averments contained in both the original and additional written statements. A reading of these two statements would make it very clear that the averment in the additional written statement is also in line with the original written statement, of course with some inconsistencies. But that does not mean that a totally new case has been put forward by the petitioner/defendant. Courts should be very liberal in granting relief under Order 8 Rule 9 C.P.C as wide discretion has been given to the courts to adjudicate the matter including subsequent pleadings completely and finally. Of course the discretion is to be exercised on terms considering the facts and circumstances of the individual cases. The trial court, in this case, has unfortunately rigid in being unreasonable in throwing out the application on technicalities.
11.In the case of P.Saraswathi vs. C.Subramanian [2013-5-L.W. 639], the pendente lite purchaser has filed an application seeking permission to file additional written statement, with regard to entitlement of proportionate share in the suit property of his vendor the first defendant, since the vendor has remained ex-parte in the proceedings. In those facts, this court held that it is only an additional defence and it cannot be treated as inconsistent defence from that of the defence taken in the original written statement. Moreover, adding a new ground of defence or substituting or altering a defence is permissible.
12.It is settled law that the court has got wide power and unfettered discretion has been conferred on the court to allow amendment of the pleadings to a party, in such manner and on such terms as it appears to the court just and proper.
13.As observed by this court in the judgment reported in 2007-1-LW-429 in the case of Thiyagarajan vs. Manivannan, the discretion is to be exercised on terms considering the facts and circumstances of the individual cases.
14.In the instant case, the plaintiff had instituted the suit for recovery of the advance amount on the basis of the sale agreement, dated 28.06.2012. The defendant has categorically admitted the execution of the sale agreement and the advance paid by the plaintiff, in pursuance of the agreement. The specific case of the defendant/petitioner is that as per the default clause in the agreement, the petitioner is not entitled for refund of the advance amount.
15.Indisputably, the original written statement was filed on 07.10.2013 and the suit was posted in the special list on 06.01.2014 and the trial had commenced on 20.01.2014. After taking several adjournments for cross examination of the witnesses i.e., nearly for seven months, the petitioner had filed the application for receiving additional written statement, taking a new plea in the additional written statement.
16.In my considered view that the decisions cited by the learned counsel for the petitioner do not have bearing on the facts of the case. The trial court had rightly rejected the application and I do not find any infirmity or illegality in the order impugned.
17.In the result, the revision is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
02.03.2015
Index : Yes/No
Internet : Yes/No
er
K.KALYANASUNDRAM,J
er
To,
The Subordinate Judge,
Perundurai.
CRP(PD)No.868 of 2015
02.03.2015