Madras High Court
E.O.Mohammed Ali vs Dessi Ammal Alias Jessima Beevi on 21 July, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:21/07/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.(MD) No.2045 of 2008 and M.P.(MD) No.1 of 2008 E.O.Mohammed Ali ... Petitioner vs. 1.Dessi Ammal alias Jessima Beevi 2.Saburaal Beevi 3.Mydheen Meeran Beevi 4.Mahaboob Ali 5.Sheik Mansoor 6.Mohammed Yousuff 7.Mydeen Pathu 8.Syedali Pathu ... Respondents PRAYER Civil Revision Petition filed under Article 227 of Constitution of India, against the order dated 07.08.2009 passed in I.A. No.508 of 2007 in O.S. No.942 of 2004 on the file of I Additional District Munsif Court, Tirunelveli. !For Petitioner ... Mr.S.P.Maharajan ^For Respondents ... Mr.M.Vallinayagam * * * * * :JUDGMENT
The revision has been filed by the defendant in the suit challenging the order passed in I.A. No.508 of 2008 in O.S. No.942 of 2004, wherein the application filed by the petitioner seeking to file additional written statement was rejected on the ground of delay and on the ground that a new case cannot be introduced. Challenging the said order of the Court below, the revision has been filed.
2. The respondents herein filed a suit in O.S. No.942 of 2004 seeking the relief of permanent injunction. A written statement was filed by the petitioner and after the evidence of the plaintiffs as well as the petitioner side is over, the present application has been filed in I.A.No.508 of 2007 seeking permission of the Court to file additional written statement. The said application has been filed only on the ground that they have unearthed new documents only now.
3. The Court below has dismissed the said application primarily on the ground of delay and also holding that if a new case is introduced, the same would cause prejudice to the respondents. According to the learned counsel, only during the examination of P.W.1 and only when Ex.A1 was marked on the side of the plaintiffs, the petitioner was made to look out for the documents in support of his case. Hence the learned counsel submitted that the delay is unavoidable and reasonable, since only because of the marking of Ex.A1 coupled with evidence of P.W.1, the petitioner was made to search for the other documents and thereafter, the present application seeking permission to file additional written statement will have to be allowed liberally and in the interest of justice. It is further submitted that no mutually destructive plea has been taken and additional written statement can be filed when the earlier written statement has not mentioned those facts earlier.
4. The learned counsel has also relied upon the judgments reported in 2004 (4) CTC 759 (T.R.Govindasamy and others Vs. T.R.Natarajan and others), 2005 (5) CTC 38 (Radhabai Ammal and another Vs. N.Loganathan and others), 2007 (3) CTC 554 (S.Suresh Vs. Sivabalakannan and others), 2007 (5) CTC 722 (Muthuraman Vs. Muthukumaran), 2008 (4) TNLJ 525 (Civil) (Mrs.N.Vimala rep. by her Power Agent Mr.M.Nagarajan Vs. 1.K.Krishnan, 2.Mrs.Prema, 3.Sivakumar 4.K.Boopathy) in support of his contention that when the additional written statement sought to be filed is not inconsistent with the earlier statement and the plea raised is no mutually destructive, then the Civil Court will have to allow the said application liberally with a view to decide the dispute between the parties by affording proper opportunities.
5. Per contra, the learned counsel for the respondents submitted that in the present case, the evidence has been closed and at that stage the present application has been filed. It is further stated that the inconsistent plea cannot be allowed to be taken and the attempt of the petitioner to file written statement in pursuant to the evidence given by P.W.1 read with Ex.A10 cannot be permitted. The learned counsel has also relied upon the judgment reported in 2007 (3) LW 205 (Chinnammal Vs. Shanmugam and 2 others) and the judgment reported in 2009 (3) MLJ 959 (Tajdeen Vs. Abdul Muthalif) in support of his case that the additional written statement cannot be allowed to be filed on a belated stage.
6. I have considered the rival submissions made by the counsels appeared for the parties. A perusal of the affidavit filed by the petitioner as well as the counter filed by the respondents would show that the present application has been filed in pursuant to the evidence of P.W.1 read with the document marked under Ex.A10. The Proviso to Order 6 Rule 17 provides that unless due diligence is shown by a party concerned the permission for amendment or additional written statement cannot be allowed. In this case, as stated above it has been argued by the learned counsel for the petitioner that the present application has been filed only in pursuant to the evidence of P.W.1 and after marking Ex.A10 and the said fact has also been accepted in the counter affidavit and therefore this Court is of the opinion that the delay cannot be held as wantonly and deliberate. It cannot be said that the petitioner herein was in fact in possession of the documents relied upon by him in the additional written statement earlier.
7. It is well settled principle of law as held by judgments referred by the learned counsel for the petitioner that an application seeking the filing of additional written statement will have to allowed liberally and in the interest of justice. In the present case, the Court below has not given any finding that the stand taken in the additional written statement is inconsistent or mutually destructive. The only reason for rejection is that of delay and introducing a new case. A reading of the written statement filed earlier and the additional written statement filed would show that no inconsistent stand has been taken, but what is sought to be introduced in the additional written statement is the facts which has not been mentioned earlier in the written statement. In such a contingency, it cannot be said that the application filed by the petitioner would prejudice the interest of the respondents. Ultimately the suit is to be decided on the basis of the evidence both documentary and oral to be adduced by the parties. Hence in order to adjudicate the dispute between the parties full hearing coupled with proper opportunities should be given to the parties. The delay in filing the application itself cannot be a ground for rejection, more so when the petitioner is not able to get those particulars earlier.
8. In so far as the judgments relied upon by the learned counsel for the respondents are concerned, a perusal of the judgment reported in 2007 (3) LW 205 (Chinnammal Vs. Shanmugam and 2 others) would show that in the said case the defendants wanted to take the plea that the plaintiff is a tenant. Therefore the Court below was pleased to reject the said contention on the ground that the said contention would prejudice the case of the plaintiffs. Similarly in the judgment reported in 2009 (3) MLJ 959 (Tajdeen Vs. Abdul Muthalif) the Hon'ble High Court was pleased to hold that a stand taken in the additional written statement contrary to the written statement cannot be permitted, more so at a belated stage. Therefore, on a reading of the above said judgment, this Court is of the opinion that those judgments are not applicable to the present case on hand. Accordingly on a consideration of the above said legal and factual position, this Court is of the opinion that the revision deserves to be allowed and accordingly the same is allowed.
9. In view of allowing the revision, the respondents are permitted to file the reply statement if so advised within a period of four weeks from the date of receipt of copy of this order. The Court below is directed to dispose of the suit within a period of four months from the date of receipt of copy of this order. with this observation, the revision is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
cs To The I Additional District Munsif Court, Tirunelveli