Kerala High Court
Jayan vs Muraleedharan on 14 August, 2017
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939
OP(C).No. 3017 of 2017 (O)
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AGAINST THE ORDER IN I.A.2830/2017 IN OS 58/2014 of II ADDL.SUB COURT, THRISSUR
DATED 14.08.2017
PETITIONER :
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JAYAN
S/O.GOPI KARAPPAN, THEKKETHARA HOUSE, MAILIPADAM DESOM,
CHEMBOOKAVU VILLAGE, THRISSUR,
REP.BY POWER OF ATTORNEY HOLDER, GOPI, S/O.KARAPPAN,
THEKKETHARA HOUSE, MAILIPADAM, CHEMBOOKAVU VILLAGE, THRISSUR.
BYADV. SRI.DILIP J. AKKARA
RESPONDENTS :
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1. MURALEEDHARAN
S/O.VELAYUDHAN, PANDARAPARAMBIL HOUSE,
VAZHIYAMBALAM DESOM,
KODAKARAVILLAGE, MUKUNDAPURAM TALUK-680684.
2. TESSY
W/O.VARGEHSE, ALAPPATT HOUSE, OLLUKARA VILLAGE,
THRISSUR CORPORATION, KIZHAKKEKOTTA, NELLIKUNNU P.O.,
THRISSUR TALUK-680005.
R1 BY ADV. SRI.T.N.MANOJ
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3017 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 PLAINT DATED 21-2-14 OS 58/14 OF SUB COURT,THRISSUR.
EXHIBIT P2 PHOTOCOPY OF THE WRITTEN STATEMENT DATED 25-6-2014 IN OS 58/14
OF II ADDL. SUB COURT THRISSUR.
EXHIBIT P3 PHOTOCOPY OF SALE AGREEMENT DATED 16-10-12.
EXHIBIT P4 PHOTOCOPY OF ADDITIONAL WRITTEN STATEMENT DATED9-8-17 IN OS
58/14 OF II ADDL.SUB COURT,THRISSUR.
EXHIBIT P5 PHOTOCOPY OF IA NO.2830/17 DATED 9-8-17 IN OS 58/14 OF II ADDL.SUB
COURT,THRISSUR.
EXHIBIT P6 PHOTOCOPY OF COUNTER DATED 10-8-17 FILED BY THE 1ST
RESPONDENT IN IA 2830/17.
EXHIBIT P7 PHOTOCOPY OF THE ORDER OF THIS HONOURABLE COURT DATED18-8-17
IN OP(C)NO.2554/17.
* EXHIBIT P8 PHOTOCOPY OF ORDER DATED 14-8-17 OF II ADDL.SUB COURT
THRISSUR IN IA 2830/17. (SUBSTITUTED)
EXHIBIT P8 IS SUBSTITUTED WITH A TRUE COPY OF ORDER DATED 14/8/17 IN IA 2830/17
IN OS 58/14 OF THE IIND ADDL. SUB COURT, THRISSUR, VIDE ORDER DATED31/10/17 IN
IA 1861/17
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.A TO JUDGE
AV
ANIL K.NARENDRAN, J.
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O.P.(C)No.3017 of 2017
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Dated this the 21st day of November, 2017
J U D G M E N T
The petitioner, who is the 1st defendant in O.S.No.58 of 2014 on the file of the Sub Court, Thrissur, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P8 order dated 14.8.2017 of the said court in I.A.No.2830 of 2017 in that suit, which is an interlocutory application filed under Order VIII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking permission to file additional written statement. The relief sought for in the said application was opposed by the 1st respondent/plaintiff by filing Ext.P6 counter affidavit contending, inter alia, that the application is highly belated and that, no reasons have been stated for not filing such an application earlier, etc. After considering the rival contentions, the court below dismissed the said application by Ext.P8 order dated 14.8.2017 and the reasoning of the said court, as contained in paragraph 4 of that order, reads thus;
"4. The suit is one for specific performance of a contract O.P.(C)No.3017 of 2017 :-2-:
for sale. The 1st defendant filed a detailed written statement on 25.06.2014. In the written statement it was contended that the agreement for sale produced by the plaintiff is a fabricated one fabricated by misusing signed stamp paper and signed papers which were given by the 1st defendant to the plaintiff in connection with a loan availed from the plaintiff. The suit is listed for trial to 09.08.2017. The petitioner filed the petition on 09.08.2017. A bare look at the plea sought to be introduced by the petitioner by way of additional written statement shows that the same is at variance with the plea already taken. Admittedly the agreement for sale was filed along with the plaint by the plaintiff. According to the petitioner, it has came to his knowledge that the signatures in the agreement for sale except in the stamp paper are not that of his recently. I find merit in the argument of the learned counsel appearing for the 1st respondent/plaintiff that new facts/pleadings cannot be permitted by way of additional written statement. The new defence canvased by the petitioner is inconsistent with the previous pleading in the written statement which cannot be entertained. New pleading can be by way of independent or primary amendment in terms of Order VI Rule 17 of the CPC only. Hence the petition is not allowable."
2. Heard the learned counsel for the petitioner/1st defendant.
3. The sole issue that arises for consideration in this O.P.(C)No.3017 of 2017 :-3-:
original petition is as to the legality or otherwise of Ext.P8 order dated 14.8.2017 of the court below in I.A.No.2830 of 2017 in O.S.No.58 of 2014.
4. O.S.No.58 of 2014 is one filed by the 1st respondent/ plaintiff for specific performance of an agreement for sale of the plaint schedule property, alleged to have been executed on 16.10.2012, whereby the petitioner/1st defendant has agreed to sell the said property having an extent of 6 cents to the plaintiff for a consideration of 70,00,000/-, paying a sum of 15,00,000/- as advance. Ext.P1 is a copy of the plaint in O.S.No.58 of 2014 and Ext.P2 is a copy of written statement dated 25.6.2014 filed by the 1st defendant in that suit, which is one filed through his power of attorney holder.
5. According to the 1st defendant, at the time of filing Ext.P2 written statement on 25.6.2014, he could not peruse the suit document, i.e., the sale agreement dated 16.10.2012. Only recently, he could peruse the said document and then he realised that the first page of the said document is prepared in one of the signed blank documents obtained by the plaintiff and that, the O.P.(C)No.3017 of 2017 :-4-:
signatures on the subsequent pages are all forged. In paragraph 3 of this original petition, the petitioner/1st defendant has stated as follows;
"Realising that there is no specific pleadings in his written statement as to the forgery committed in Ext.P3 agreement, the petitioner filed additional written statement with a petition to accept the same."
Ext.P4 is a copy of the additional written statement dated 9.8.2017 and Ext.P5 is a copy of the interlocutory application filed under Order VIII Rule 9 of the Code, seeking an order to accept Ext.P4 additional written statement. The 1st defendant filed Ext.P5 interlocutory application on 9.9.2017, the date on which the suit was listed for trial.
6. The plaintiff opposed the relief sought for in Ext.P5 interlocutory application, by filing Ext.P6 counter affidavit. After considering the rival contentions, the court below passed Ext.P8 order, whereby the request made by the 1st defendant for acceptance of Ext.P4 additional written statement stands rejected.
7. Order VI, Rule 17 of the Code deals with amendment of pleadings. Order VI, Rule 17 of the Code, as substituted by the O.P.(C)No.3017 of 2017 :-5-:
Code of Civil Procedure (Amendment) Act, 2002, provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. However, going by the proviso to the said Rule, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8. On the other hand, Order VIII, Rule 9 of the Code deals with subsequent pleadings. Order VIII, Rule 9 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court and upon such terms as the court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than O.P.(C)No.3017 of 2017 :-6-:
thirty days for presenting the same.
9. A combined reading of the provisions under Order VI, Rule 17 and Order VIII, Rule 9 of the Code make it explicitly clear that, while the power of the court to permit amendment of pleadings is restricted by the proviso to that Rule, whereby such request made after the trial has commenced shall not be allowed unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. On the other hand, going by the provisions under Order VIII, Rule 9, leave of the court, on such terms as it thinks fit, is required for presenting pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim. But, the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
10. In T.R.Govindasamy v. T.R.Natarajan (AIR 2005 Madras 21), a learned Judge of the Madras High Court held that, Order VIII Rule 9 of the Code gives wide power to courts to give O.P.(C)No.3017 of 2017 :-7-:
permission to the defendant to file additional written statement at any time, but fixing the maximum days for presenting the same and that, there is no other restriction in granting leave for the defendants to file additional written statement.
11. In T.R.Govindasamy's case (supra), the suit was one for partition. In the plaint, the plaintiffs traced title to the suit property to the original owners, viz., Narayanaswamy Naidu and Perumal Naidu, who are brothers. As per the plaint averments, the owners of the property settled the same in favour of Narayana Naidu and Rangaswamy Naidu. The plaintiffs, tracing the succession under them, have filed the suit for partition of their 3/7th share in the suit property. The defendants filed written statement in the year 2000, wherein they have admitted that the suit property originally belonged to Narayanaswamy Naidu and Perumal Naidu and that, they had executed a registered settlement deed dated 20.7.1959 in favour of Narayana Naidu and Ayyammal, which is the source of title for the plaintiffs, as well as for some of the defendants. The defendants admitting the original title in favour of Narayanaswamy Naidu and Perumal Naidu, O.P.(C)No.3017 of 2017 :-8-:
further conceding that they had executed a settlement deed, would contend that Ayyammal was given only a limited life time of enjoyment towards her maintenance, which right had enlarged under Section 14(1) of the Hindu Succession Act, in addition to some other defence also. On the basis of the above averments, parties went on trial before the trial court and the first plaintiff entered into the box on 7.7.2003 and his examination was over on 21.7.2003. At this stage, the contesting defendants 1, 2 and 4 filed a petition under Order VIII, Rule 9 of the Code, seeking permission of the court, to file an additional written statement, wherein they have questioned the capacity of the settlers, under the settlement deed dated 20.7.1959, on the ground that, since the property originally belonged to two brothers as ancestral property or coparcenary property, as the case may be, they had no right to settle the property and therefore, the settlement deed is not legally valid. The plaintiffs opposed the attempt of the defendants to introduce such a plea by way of additional written statement by filing a detailed counter, contending that the averments in the additional written statement are opposite to the O.P.(C)No.3017 of 2017 :-9-:
original written statement, which aims to take away the right conferred upon the plaintiffs on the basis of admission. The trial court, upon consideration of the rival contentions, dismissed the application holding that the contesting defendants should not be permitted to file additional written statement, since they sought to introduce a new case in the additional written statement, which is quite contrary to the original written statement, thereby nullifying the admission already made in the written statement. The said order was under challenge in the Civil Revision Petition filed before the High Court of Madras. After considering the rival contentions, with reference to the averments in the original written statement and the additional written statement sought to be filed, the High Court found that in the additional written statement also the defendants have not denied the execution of the settlement deed, its enforcement and the subsequent transaction in respect of the same, between the parties. By way of clarification, based on legal position, now they want to say that the suit property belonged to the above said two persons as ancestral and coparcenary property and the position being so, the O.P.(C)No.3017 of 2017 :-10-:
settlement deed executed by them is not legally valid. When PW1 was in the box, in cross-examination, he made certain admission, based on which the defendants want to say that the suit property originally belonged to Narayanaswamy Naidu and Perumal Naidu as their ancestral property and therefore, they had no absolute right to execute a valid settlement deed. The High Court found that, no where in the additional written statement, the defendants have denied the execution of the settlement deed by Narayanaswamy Naidu and Perumal Naidu. It is not their case that they want to delete the averments in the original written statement. Those averments are also available for defence, in addition to introducing some more defence. In fact, admitting the execution of the settlement deed and questioning its validity, based on legal position, supported by the nature of property, as admitted by PW1, the stand now sought to be taken by the defendants, by way of additional written statement, could not be described as an inconsistent plea or it will not have the effect of erasing any right conferred upon the plaintiffs by the original written statement. All the defence, as such are available and the O.P.(C)No.3017 of 2017 :-11-:
parties could agitate the same before the trial court, since the suit is in the beginning stage of the trial. The High Court found that, the additional written statement is in the nature of giving details, regarding the character of the property and in that process, legal position comes into play and that is why, they want to introduce the same also, which in effect, may invalidate the settlement deed to some extent, which should be decided only at the time of the trial. Therefore, by the filing of the additional written statement, it cannot be said that a new case is introduced by the defendants, abandoning the old case or by the additional written statement, their right if any acquired, is going to be prejudiced or eclipsed. Accordingly, the Civil Revision Petition was allowed, setting aside the order of the trial court.
12. In P.Saraswathi v. C.Subramaniam (AIR 2014 Madras 50), a learned Judge of the Madras High Court, in the context of Order VI, Rule 17 and Order VIII Rule 9 of the Code, held that the Legislators when amended the Code of Civil Procedure thought it fit not to allow the party to have amendment, as a matter of right, that too in a case where he had O.P.(C)No.3017 of 2017 :-12-:
an opportunity to raise the same, at the time of filing the pleadings. But, when they come to Order VIII of the Code, no such restriction has been imposed, thereby giving discretion to the court concerned to allow the subsequent pleadings, for which it is not necessary whether that defence was available on the date of filing of the original written statement or not. Under Order VIII, Rule 9 of the Code, the power is given to the court to call for the written statement or additional written statement from any party, fixing time not exceeding thirty days, thereby showing the provisions of Order VIII, Rule 9, liberal in its application, giving wide discretion to the court, probably to give a chance to the parties to agitate their right even raising subsequent pleas, for which, the court should not be rigid, and the The courts should exercise their discretion liberally, when it will not affect the right of the party.
13. In P.Saraswathi's case (supra) the court held that, under Order VIII, Rule 9 of the Code wide discretion is given to the court to receive the written statement or additional written statement, to give opportunity to the parties to agitate the case O.P.(C)No.3017 of 2017 :-13-:
effectively. Therefore, the rigid principal applicable in the case of amendment of plaint under Order VI, Rule 17 of the Code cannot be applied in the case of receiving additional written statement under Order VIII, Rule 9.
14. In Baby v. Sebastian (2007 (3) KLT 885), in the context of Order VIII, Rule 9 of the Code, a learned Judge of this Court held that, Order VIII, Rule 9 deals with pleadings subsequent to plaint and written statement. 'Subsequent pleadings' can be either by the plaintiff or by the defendant. What Rule 9 provides is only that no pleadings subsequent to the written statement of the defendant other than by way of defence to set off or counter-claim shall be presented except with the leave of the court. It is thus clear that the reference to set off or counter-claim under Order VIII, Rule 9 is with reference to subsequent pleadings raised by the plaintiff and not to subsequent pleadings raised by the defendant. As far as subsequent pleadings raised by the defendant are concerned, and for any subsequent pleadings from the plaintiff other than those by way of defence to the pleas of set off and counter-claim, what is necessary is that O.P.(C)No.3017 of 2017 :-14-:
the leave of the court shall be obtained. Additional pleadings raised by the defendants subsequent to the written statement originally filed by them under Order VIII, Rule 1 of the Code are often referred to as additional written statements. Filing of additional written statement may be necessitated for the purpose of introducing new contentions or for clarifying or elaborating on the contentions already raised. That need not necessarily be for raising pleas of set off or counter-claim, since having regard to the rules of limitation applicable to pleas of set off and counter- claim, defendant may have to raise such pleas at the earliest opportunity itself.
15. In Baby's case (supra) it was contended that most of the averments in the proposed additional written statement sought to be filed by the defendant were well within the knowledge of the defendant at the time when he filed the original written statement and that, he has not offered any explanation in his affidavit in support of the leave application as to why those averments could not be raised earlier. This Court found that, the additional contentions sought to be raised through the additional O.P.(C)No.3017 of 2017 :-15-:
written statement cannot be said to be totally irrelevant for adjudication of the issues in that suit. Therefore, this Court found that the application submitted by the defendant should have been allowed by the court below, but on terms.
16. In Jayalakshmi v. Sarada [(2009) 14 SCC 525] one of the questions that was raised before the Apex Court was as to the distinction between Order VI, Rule 17 and Order VIII, Rule 9 of the Code of Civil Procedure. In the said decision, after referring to the provisions of Order VI Rule 17 of the Code, the Apex Court held that the said Order and Rule speak of amendment of pleadings, whereas Order VIII, Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas, by reason of the former, unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings. In the said decision, after referring to the provisions under Order VI, Rule 17 of the Code and also the decisions on this aspect, the Apex Court held that the proviso O.P.(C)No.3017 of 2017 :-16-:
appended to Order VI, Rule 17 of the Code is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
17. In Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally [(2009) 15 SCC 528] the Apex Court held that the courts should be more generous in allowing the amendment of the counter statement of the defendant than in the case of plaint.
In the said case the Apex Court found that the High Court in its impugned order has also observed that, in order to file an additional counter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter statement was rejected by the High Court on the ground that while allowing such additional counter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage.
O.P.(C)No.3017 of 2017 :-17-:
18. In Olympic Industries case (supra) the Apex Court held that, while allowing the additional counter statement or refusing to accept the same, the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. The Apex Court found that, by filing an additional counter statement in that case would not cause injustice or prejudice to the respondents, but that would help the court to decide the real controversy between the parties. Therefore, the Apex Court held that the High Court was not justified in rejecting the application for permission to file additional counter statement as no prejudice could be caused to the respondent, which would otherwise be compensated in terms of cost.
19. In Nisha v. Ramadas (judgment dated 19.9.2017 in O.P.(C)No.2684 of 2017) this Court held that, an application under Order VIII, Rule 9 of the Code for accepting additional written statement cannot be rejected merely for the reason that the trial of the suit has already been commenced and the evidence of the plaintiff has already been over. In the original O.P.(C)No.3017 of 2017 :-18-:
written statement, the specific stand taken by the defendant is total denial of the alleged sale agreement dated 23.12.2011. It is only in furtherance to the said contention that the defendant wants to contend that, as on the date of execution of the alleged sale agreement, the maximum value of the plaint schedule property, which was constructed under a scheme for homeless persons, could only be 3,00,000/-. Such a plea sought to be raised in the additional written statement cannot be termed as a plea inconsistent to that taken in the written statement originally filed. The additional plea sought to be raised will cause no prejudice to the plaintiff, and it will only help the court to decide the real controversy between the parties. Paragraph 20 of the said decision reads thus;
"20. In view of the provisions under Order VIII, Rule 9 of the Code and also the law laid down in the decisions referred to supra, conclusion is irresistible that, merely for the reason that the trial of the suit has already been commenced, and the evidence of the plaintiff has already been over, the trial court was not justified in rejecting the application made by the petitioner/defendant for accepting additional written statement. The averments in the additional written statement sought to be filed would make O.P.(C)No.3017 of 2017 :-19-:
it explicitly clear that, the additional plea sought to be raised will cause no prejudice to the respondent/plaintiff. It would only help the court to decide the real controversy between the parties. In the original written statement, the specific stand taken by the defendant is total denial of the alleged sale agreement dated 23.12.2011. It is only in furtherance to the said contention that the defendant wants to contend that, as on the date of execution of the alleged sale agreement, the maximum value of the plaint schedule property, which was constructed under a scheme for homeless persons, could only be 3 lakhs. Such a plea sought to be raised in the additional written statement cannot be termed as a plea inconsistent to that taken in the written statement originally filed. In that view of the matter, I find absolutely no reason to sustain Ext.P6 order passed by the court below."
20. In State of Bihar v. Modern Tent House [(2017) 8 SCC 567], a decision relied on by the learned counsel for the petitioner, the suit filed by the respondents/plaintiffs was for recovery of 41,59,418/- and the appellants/defendants filed written statement denying the claim. The evidence of the plaintiffs was over and that of the defendants remains. The defendants filed an application under Order VI, Rule 17 of the Code seeking amendment of their written statement by adding two paragraphs O.P.(C)No.3017 of 2017 :-20-:
in their written statement. On a perusal of the amendment application, the Apex Court found that the proposed amendment is on facts and the defendants in substance seek to elaborate the facts originally pleaded in the written statement, which is in the nature of amplification of the defence already taken. It does not introduce any new defence compared to what has originally been pleaded in the written statement. The amendment, if allowed, would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement. Further, there is no prejudice to the plaintiffs, if such amendment is allowed because, notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs. Since the trial of the suit is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises. Paragraph 8 of the said decision reads thus;
"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed O.P.(C)No.3017 of 2017 :-21-:
amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises."
21. In the instant case, the stand originally taken by the 1st defendant in Ext.P2 written statement is that the sale agreement dated 16.10.2012 is not a genuine agreement and it is a concocted document made by using the blank signed papers, printed papers as well as white papers obtained by the plaintiff from the 1st defendant, while he had availed a loan for 15,00,000/- from the plaintiff. Therefore, according to the 1st O.P.(C)No.3017 of 2017 :-22-:
defendant, the plaintiff misused the above said blank papers and created the sale agreement. Ext.P2 written statement filed by the 1st defendant is one dated 25.6.2014. After pre trial steps, the suit was listed for trial to 9.8.2017. On that day, the 1st defendant filed Ext.P4 additional written statement, along with Ext.P5 interlocutory application filed under Order VIII, Rule 9 of the Code. In Ext.P4 additional written statement, the 1st defendant raised a contention that, only the stamp paper contains his signature and the signatures on other papers of the sale agreement are fabricated.
22. As I have already noticed, the specific case of the petitioner/1st defendant in paragraph 3 of this original petition is that, he filed Ext.P4 additional written statement with Ext.P5 petition to accept the same, on realising that there is no specific pleadings in Ext.P2 written statement as to the forgery committed in Ext.P3 sale agreement. Since the plea sought to be introduced by the petitioner/1st defendant is at variance and inconsistent with the defence already taken in Ext.P2 written statement, it cannot be entertained in an application filed under Order VIII, Rule 9 of O.P.(C)No.3017 of 2017 :-23-:
the Code. It was in such circumstances that, the court below rejected Ext.P5 application by Ext.P8 order. At any rate, it cannot be said that, the proposed amendment in substance seeks to elaborate the facts originally pleaded in Ext.P2 written statement or that, it is in the nature of amplification of the defence already taken.
23. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
24. In Jai Singh v. Municipal Corporation of Delhi O.P.(C)No.3017 of 2017 :-24-:
[(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of O.P.(C)No.3017 of 2017 :-25-:
a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
25. In Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1] a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law.
26. In Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 (1) KLT 749) this Court held that, delay in the judicial process will only be further aggravated if this Court by invoking O.P.(C)No.3017 of 2017 :-26-:
the powers under Article 227 of the Constitution of India were to show undeserved indulgence to parties to a civil suit. An incorrect impression has gained ground that any and every error, inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. The impression that the party and the counsel need open the case bundle only after the case is listed for trial must go at the earliest. Once issues are framed, it is the duty of the parties to contemplate the steps required to be taken in the suit and prompt and proper steps must be taken.
27. Viewed in the light of the law laid down in the decisions referred to above, the reasoning of the court below in Ext.P8 order cannot be termed either arbitrary or perverse, warranting an interference of this Court in exercise the supervisory jurisdiction under Article 227 of the Constitution. It cannot also be said that, while declining exercise of powers under Order VIII, Rule 9 of the Code, the court below committed any manifest error, O.P.(C)No.3017 of 2017 :-27-:
warranting an interference by this Court.
In the result, this original petition fails and the same is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN JUDGE ami/