Madras High Court
S.J.Nirmala vs A.Ganapathy (Died) on 26 October, 2016
Author: D.Krishnakumar
Bench: D.Krishnakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.10.2016
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.R.P. PD (MD) No.1022 of 2005
and
C.M.P.(MD) No.8060 of 2015
S.J.Nirmala : Petitioner
Vs.
1.A.Ganapathy (Died)
2.G.Nagalakshmi
3.P.Chandra Devi
4.Banumathi
5.G.Kumaran
6.Jayasoundaram
7.G.Vijayalakshmi : Respondents
(Respondents 2 to 8 brought on records as LRS
of deceased sole respondent vide order dated 24.08.2016
in M.P.(MD) No.1 to 3 of 2008)
Prayer: Civil Revision petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order passed in
I.A.No.477 of 2005 in O.S.No.189 of 2004 dated 04.08.2005 on the file of the
Principal District Munsif Court, Madurai Town.
!For Petitioner : Mr.V.Meenakshi Sundaram for
A.Sankarasubramanian
^For Respondents : Ms.J.Anandavalli
Orders reserved on : 05.10.2016
Order Pronounced on : 26.10.2016
:ORDER
The civil revision petition arises against the order passed in I.A.No.477 of 2005 in O.S.No.189 of 2004 dated 04.08.2005 on the file of the Principal District Munsif Court, Madurai Town.
2.According to the petitioner, the first respondent/defendant has filed a suit in O.S.No.189 of 2004 for recovery of money on the basis of Promissory note executed by the husband of the revision petition. In the said suit, the petitioner filed her written statement on 10.12.2014. The revision petitioner has not disputed the signature of her husband found in the pronote. However, she filed an application in I.A.No.477 of 2005 before the learned Principal District Munsif, Madurai Town, under Order 8 Rule 9 and Section 94(e) and 151 of C.P.C., to receive her additional written statement stating that the signature of her husband found below the two revenue stamp paper is forged and the same is not belonging to her husband and hence, the alleged pronote executed by the husband of the petitioner is subjected to material alteration and the said fact came to know only at the time of verification of the said suit promissory note on 10.12.2004. The said application was dismissed by the trial Court. Challenging the said order, the petitioner herein preferred the present revision before this Court.
3.Per contra, the learned counsel for the respondent/plaintiff would submit that the petitioner has admitted the payment of Rs.10,000/- on 02.09.2002. The said admission made by the petitioner has been mentioned in the rear side of the suit promissory note and in the same promissory note, signature of her husband has been found. Now, to drag on the proceedings, she filed the present application to receive additional written statement, which is inconsistent defence raised in the written statement as well as in the endorsement made on the rear side of the pronote and once the written statement contains an admission of the defendant in favour of the plaintiff and amendment of such admission of the defendant cannot be allowed to be withdrawn, if such withdrawal would amount to totally displacing the case of the plaintiff and which cause him irretrievable prejudice and the trial Court ha rightly dismissed the said application.
4.Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the materials available on record.
5.There is no dispute that the said suit has been filed for recovery of money on the basis of the promissory note. The revision petitioner/defendant filed her written statement on 10.12.2004. In the said written statement, the revision petitioner has not disputed the signature of her husband on the two revenue stamp papers. Thereafter, she came to know that the signature of her husband on the bottom of the two revenue stamp papers is forged and there is a material altercation of the material document, Hence, she filed the instant application to receive her additional written statement in the suit.
6.At this juncture, it is appropriate to consider the decision relied on by the learned counsel for the petitioner in 2005(3) C.T.C. 12 ? P.Sood & Co., (Manufacturing) rep. By its Partner Krishnakumar Sood V. Peerchand Misrimalji Bhansai, wherein, in, it has been held that when the defendant had denied signature even in reply notice and also in written statement, the plaintiff ought to have taken steps for examination of a disputed signature by handwriting expert. The said decision is not applicable to the facts of the present case.
7.In the decision in 2016-4 L.WQ. 736 ? K.Jagan and Another V. Arumugam, this Court has held in paragraphs 9 and 10 as follows:
?9. .............. Therefore, it has been stated that the object of filing additional written statement is to supply what might have been omitted in the written statement filed earlier and the additional written statement can be allowed, if it is not likely to cause prejudice to the plaintiff. The Court has also held that permission is to be granted to file subsequent pleadings if they are also relevant to prove the facts placed before the Court by the defendant. In the instant case, the agreement which is sought to have been allegedly entered into has been done by the parents of the petitioner who are no more. The very date on which a stamp paper was purchased itself appears to be later to the date on which the agreement is alleged to have been entered into. These facts give rise to some suspicion and hence, the Court while the petitioner has raised an issue regarding the credibility of the document should have been cautious while looking into the same. However, the Court has considered this to be another attempt by the party to prolong the matter.
10.This Court is of the view that the claim of the petitioner deserves consideration and the impugned order passed by the Subordinate Court requires interference since the stand of the petitioners has not been given the due credence at all especially once when they were minors at the time of institution of the Suit.?
8.Considering the above said decision, in the aforesaid suit, the agreement was entered into between the parties, at the time of the petitioners were minors and hence, this Court has allowed the said application. But, as far as the present case is concerned, the petitioner herein has admitted the pronote and endorsement made by her in the rear side of the said pronote. However, she has filed the instant application to receive her additional statement, with an inconsistent defence taken by the revision petitioner. Therefore, the said decision also is not applicable to the facts of the present case.
9.I have considered the decision relied on by the learned counsel for the respondent in CDJ 1997 SC 013 ? Heeralal V. Kalyan Mal, wherein, the Apex Court has held as follows:
?8.Consequently, it must be held that when the amendment sought 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 member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges as to the extent to which the latter decision 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.
10.In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule-A of the plaint. However, so far as Schedule-B properties are concerned, from the very inception the defendants' case quo those properties was that plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule-B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties were concerned, the amendment could not be found fault with. Hence exercising the power under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking, High Court could not have interfered with even this part of the order under Section 115, C.P.C. ?
10.Following the said decision of the Apex Court, this Court in the case reported in CDJ 1998 MHC 1011 ?N.Srinivasan V. Muthammal, has held as follows:
?12.It is also to be noted that there is absolutely no bona fides on the part of the defendant to have come forward with a belated petition for amendment even though he pleads that he had seen the promissory note only when he was in the witness box. Such a plea cannot be accepted having rgard to the clear stand taken by him in the original statement. As stated earlier, in the original written statement he has specifically pleaded that the month as found in the promissory note had been corrected, that he had executed the promissory note only in the month of January 1992 and not in November, 1992. Such a pleading could not have been made without having seen the suit promissory note and therefore, the contention that the defendant had seen the suit promissory note only when he was in the witness box cannot be accepted and has to be held as false. It is also pertinent to note that in this case the plaintiff after examining herself as P.W.1 has closed her case and in the midst of examining himself as D.W.1 the defendant has come forward with the present petition for amendment of the written statement. In a decision reported in, Murthi Gounder V. Karuppanna Gounder, A.I.R. 1976 Mad. 302, C.J. R.Paul, J. had occasion to consider the effect of filing belated additional written statement and considering the stage of which the application was filed, learned Judge has held that undoubtedly prejudice would be caused to the plaintiff necessitating the filing a reply statement and framing of fresh and different issues for consideration.
13.Therefore, viewed from any angle the attempt on the part of the defendant/petitioner to amend the written statement and to file the additional written statement cannot be countenanced.?
11.Considering the facts and circumstances of the present case along with the above said decisions, the petitioner herself has made an endorsement on the rear side of the suit pronote stating that she has paid a sum of Rs.10,000/- to the defendant and she has also signed in the revenue stamp paper. Therefore, the application filed by the petitioner to receive additional written statement cannot be countenanced. It is for the petitioner to prove her case on the basis of the oral and documentary evidence. Therefore, the order passed by the Court below does not warrant interference and the same is liable to be dismissed and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
To The Principal District Munsif Court, Madurai Town..