Madras High Court
Sivagnanamoorthy vs M. Shanmugam on 5 August, 2003
Equivalent citations: (2003)3MLJ342
JUDGMENT K. Govindarajan, J.
1. The unsuccessful defendant before the lower appellate Court has filed this Second Appeal.
2. The respondent/plaintiff filed a suit in O.S. No. 314/1990 on the file of the Principal Sub-Judge, Trichirapalli, for partition of his half share in the suit properties. The suit properties are four in number. According to the plaintiff, who is the father of the defendant, the suit properties are the joint family properties and so the same have to be divided and half share has to be allotted to the plaintiff.
3. The defendant-son, though originally filed a written statement giving consent for such partition, subsequently filed additional written statement and took a different stand stating that there was a partition on 18.11.1986 itself, and in the said partition, item Nos. 1 and 3 and northern portion of item No. 4 were allotted to him. He has also stated that he paid the loan amount and discharged the mortgage with respect to the 1st item. He claimed that after partition he has been enjoying the said properties.
4. The trial Court accepting the case of the defendant as set out in the additional written statement and on the basis of the alleged subsequent partition under Ex.B12 as claimed by the defendant, dismissed the suit. Hence the plaintiff preferred an Appeal in A.S. No. 21 of 2001 on the file of the I Addl., District Judge-cum-Chief Judicial Magistrate, Trichirapalli. The learned District Judge reversed the judgment and decree of the trial Court only on the basis that Ex.B12 is not a registered document and so the claim made by the defendant under Ex.B12 cannot be accepted, and if it is accepted, the plaintiff is entitled for partition as prayed for. On the basis of the said finding, the learned District Judge allowed the Appeal by setting aside the judgment and decree of the trial Court and thereby decreed the suit for partition and held that plaintiff is entitled for half share in the suit properties. Hence this Second Appeal.
5. The substantial question of law that arise for consideration are :-
(1) Whether the Courts below are correct in relying on the additional written statement and Ex.B12 to accept the case of the appellant/defendant?
(2) can the appellant/defendant sustain his plea in the additional written statement, though he submitted to the decree for partition, stating in the original written statement that he has no objection for division of half share in the suit properties?
6. The respondent/plaintiff filed the said suit for partition on the basis that the suit properties are joint family properties. The respondent/defendant-son originally filed a written statement on 20.3.1992 stating that the suit properties were allotted to the respondent/plaintiff under the family partition deed dated 29.5.1981 and the plaintiff did not acquire any other properties thereafter. It is also specifically admitted that the suit properties are joint family properties. It is specifically stated in paragraph 6 of the written statement while denying the averments in paragraph 7 of the plaint that the defendant/appellant did not look after the cultivation. The said portion of the written statement is extracted hereunder:-
"The further averment in para 7 of the plaint that the defendant is looking after the cultivation and operation of the 1st item of the suit property for the past three years and that he is taking away the entire proceeds of the land, are all not admitted by this defendant. That is only the plaintiff who is enjoying the 1st item of the suit property. He is cultivating the I item of the suit property along with other leasehold lands taken by him."
Apart from the above said admission with respect to the I item, in paragraph 12 of the written statement, he has come forward with the following prayer:-
"It is therefore prayed that this Honorable Court may be pleased to pass a decree for partition and separate possession of 1/2 share of the defendant as the defendant is ready and willing to pay the necessary court fee for allotment of share and thus render justice."
7. But, subsequently, the appellant/defendant came forward with the additional written statement stating that he has been enjoying the I item of the suit properties, and in view of Ex.B12 dated 18.11.1986, there was a partition between the plaintiff and the defendant and thereby they have been enjoying the suit properties separately and so the suit for partition filed by the respondent/plaintiff has to be rejected.
8. The trial Court, without even appreciating the implication of the admission made in the original written statement, dismissed the suit. The lower appellate Court also, though allowed the Appeal and decreed the suit for partition, has not appreciated the scope of admission made in the original written statement.
9. It is no doubt true that the appellant/defendant can raise inconsistent plea. But, the Courts have held that defendant should not be allowed to take a different plea, which is mutually destructive, and if it is allowed, it would amount to permitting the defendant to withdraw the averments allegedly made by him in the original written statement. In this case, as set out earlier, the appellant/defendant himself prayed for partition of half share in the suit properties and he came forward with the plea that the respondent/plaintiff is ready to pay the court fee for the same. The appellant/defendant also has admitted that the respondent/plaintiff is in possession of the I item of the suit properties and so the defendant is not liable to pay any damages as claimed by the plaintiff. Without even amending the said plea, by way of additional written statement, the appellant/defendant has come forward with contradictory allegations, causing irretrievable prejudice to the respondent/plaintiff. Before the Courts below, two different pleas raised by the appellant/defendant are on record. That is, the plea raised earlier in the original written statement by the defendant is also on record in tact. So the Courts below cannot ignore the same. The new plea was not taken by way of amendment erasing the earlier plea, but by way of additional written statement, keeping the earlier plea taken by the defendant also on record. Such a plea taken even though by way of amendment, if it is destructive in nature and results in defeating a legal right accrued to the plaintiff, it cannot be allowed. The stand taken by the defendant in the additional written statement cannot be simply construed as an inconsistent plea or an alternative plea. It is altogether a different case than the one set out in the original written statement. So, the trial Court should not have relied on the said additional written statement to reject the case of the plaintiff that he is not entitled to sustain the suit for partition.
10. In the decision in Gopalakrishnamurthi v. Sreedhara Rao, 1949(II) M.L.J. 421, while dealing with the scope of amendment in the plaint, the learned Judge of this Court, following the judgment of the Privy Council, has held that where certain facts are alleged in a proposed amendment of the plaint which facts were available to the plaintiffs and which they had not chosen to mention in the original plaint, it would not be open to the Courts to permit such an amendment where it would result in a new case being made out on facts which were available but were not pleaded. The above said principle applies to the facts of the present case. In the present case, Ex.B12 was in existence even at the time of filing the original written statement. In spite of that, the defendant came forward with the prayer that partition of the suit properties should be effected.
11. In the decision in A.K. Gupta & Sons Ltd., v. Damodar Valley Corpn., , it is held as follows:-
"The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal, (1887) 19 QBD 394 : 56 LJ QB 621. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation."
12. The Apex Court in the decision in Shrimoni Gurdwara Committee v. Jaswant Singh, , has held as follows:-
"The same contention has been reiterated before us. We find no force in the contention of the learned counsel for the petitioner that the pleading does contain the gift clause in the original written statement and that it sought to be elaborated by obtaining proper documents at this belated stage. It is settled law that the defendant can raise mutually inconsistent pleadings in the written statement but it is for the court to consider whether the case can be properly considered in deciding the issue. But in this case the plea in the written statement is mutually destructive. In the first written statement, they have denied the title of Isher Singh himself. When such is the situation, how can they set up a title in him and plead gift made by Isher Singh in favour of the petitioner-Committee. Under these circumstances, the High Court has rightly refused to grant the plaint. Moreover, there is no explanation given as to why they came forward with this plea at the belated stage after the parties had adduced the evidence and the matter was to be argued. Under these circumstances, we do not find any error of jurisdiction or material irregularity in the exercise of jurisdiction warranting interference."
13. Even in the decision in B.K. Narayana Pillai v. Parameswaran Pillai, , the Apex Court has held as follows:-
"The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as the question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs."
14. From the above, it is clear that the Courts cannot ignore the original written statement which is on record in which the defendant himself has come forward with the prayer for partition, and specifically pleaded that the respondent/plaintiff is in possession of the I item of the suit properties. In view of the said admission with respect to the case of the plaintiff, the respondent/plaintiff is entitled to rely on the same, though the appellant/defendant has taken a different stand in the additional written statement. Hence the Courts below are not correct in ignoring the original written statement which is on record, and dealt with the case only on the basis of additional written statement.
15. In view of the above admission made by the appellant/defendant in the written statement with respect to the partition, this Second Appeal filed by the Appellant/defendant cannot be sustained and the judgment and decree of the lower appellate Court have to be sustained, though on different ground.
16. For all the reasons stated above, this Second Appeal is dismissed. No costs. C.M.P. No. 4512/2003 is also dismissed.