Madras High Court
Thiyagarajan vs Manivannan on 15 September, 2006
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 15.9.2006 Coram: The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(PD) No.996 of 2005 Thiyagarajan .. Petitioner vs. Manivannan .. Respondent Revision Petition filed against the order dated 21.3.2005, made in I.A.No.247/2004 in O.S.No.99/2004, on the file of the District Munsif Court, Chengam. For Petitioner : Mr.G.Karthikeyan For Respondent : Mr.R.Gowthamanarayanan ORDER:
This Civil Revision Petition has been filed against the order dated 21.3.2005, made in I.A.No.247/2004 in O.S.No.99/2004, on the file of the District Munsif Court, Chengam.
2. The defendant is the revision petitioner herein. The suit was filed by the respondent/plaintiff in O.S.No.21/1999 on the file of the Addl.Sub-Judge, Tiruvannamalai for recovery of money on the basis of made- over promissory note from his father, against the petitioner/defendant. Pending suit, the petitioner/defendant filed I.A.No.247/2004 seeking permission for filing additional written statement. The trial court by order dated 21.3.2005 dismissed the same. Aggrieved by the order dated 21.3.2005, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India by the petitioner/defendant.
3. Heard the learned counsel appearing for the petitioner as well as the learned counsel for the respondent. I have also gone through the documents filed by them and also the judgments referred to by them in support of their submissions.
4. The following decisions are relied on by the learned counsel for the petitioner:-
1) 1999(1) CTC 458 (Murugesan, S. v. S.Pethaperumal)
2) 1999(3) CTC 52 (Subramanian v. Jayaraman)
3) 2001(1) CTC 461 (Thangavel Pillai v. Commissioner, Corpn. of Trichy)
4) 2003(2) L.W. 395 (Thirupathi v. Kothai Aachi)
5) 2005(5)CTC 785 (Muthusamay v. Thangaraj)
5. The respondent/plaintiff filed the suit for recovery of a sum of Rs.54,360/- on the basis of pronote executed by the revision petitioner in favour of one Ramu Naidu, who made over the same to the respondent/plaintiff. The suit was resisted by the petitioner/defendant by contending that he never borrowed any money from the said Ramu Naidu, who is none other than the father of the plaintiff and he only borrowed a sum of Rs.30,000/- from one Kuppachari and executed a pronote in the name of one Velayudha Achari who is a benami of the said Kuppachari and the pronote was attested by the plaintiff's father Ramu Naidu as a witness. The defendant further averred in the written statement that on 2.2.1996 a fresh pronote for a sum of Rs.40,000/- was taken by the above said Kuppachari in the name of plaintiff's father Ramu Naidu and the earlier pronote executed by the defendant in the name of Velayudha Achari was discharged and returned to the defendant. The defendant promised to file the discharged pronote at the time of trial.
6. It is further averred by the defendant in the written statement that Kuppachari and Ramu Naidu approached him in the year 1997 and pressurised him to discharge the amount. Kuppachari offered to take the Hero Honda Motor Cycle of the defendant for the amount due on the suit pronote standing in the name of Ramu Naidu. This was accepted by the defendant and the motorcycle was adjusted for the amount covered under the suit pronote and the same was already discharged by the defendant.
7. With the above pleadings in the written statement the petitioner/defendant resisted the suit.
8. While so, he filed an application in I.A.No.247/2004 under Order 8, Rule 9 of the Code of Civil Procedure to permit him to file additional written statement. The reasons given by him in support of the application in the affidavit is that after selling away his Hero Honda Motorcycle, the suit pronote was discharged and the plaintiff's father Ramu Naidu executed a discharge receipt in his favour on 10.1.1997. The receipt was kept in his cloth shop in which a fire took place and at that time he removed all the records from the cloth shop in a hurry and kept them in his house. The said receipt was traced out by him now and hence it is necessary for him to file additional written statement narrating the above facts. In the additional written statement these facts were averred and the same was sought to be filed under Order 8 Rule 9 of C.P.C. This application was seriously opposed by the respondent/plaintiff on the ground that this application was very belated and the pleadings in the earlier written statement and in the additional written statement are inconsistent and mutually destructive. The trial court held that issues were already framed and the suit is posted for trial and the averments made in the additional written statement is entirely a new case for the defendant and therefore the defendant is not entitled to file additional written statement.
9. Order 8 Rule 9 of C.P.C. permits the defendant to file subsequent pleadings after getting leave of the court. Further, for better appreciation, order 8 Rule 9 of C.P.C. is extracted below:-
"9.Subsequent pleadings:- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claims hall 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 thirty days for presenting the same."
10. In 1999(1) CTC 458 (cited supra), this court held that the trial court is wrong in rejecting application to accept the reply statement on the ground that it cannot be filed after examining the witnesses.
11. In 1999(3) CTC 52 (cited supra), this court held as follows:-
"9. It is not the intention of the legislature that no pleading subsequent to the written statement should be allowed other than for reasons given therein. But the intention is that without the leave of the Court, no pleading subsequent to the written statement shall be presented. Hence, it goes without saying that the subsequent statement or additional statement could be filed only with the leave of the Court on such terms, as the Court thinks fit. The approach of Law in permitting the court to grant leave in such cases is positive. But, the Court while granting the leave could direct the petitioner to comply with certain terms that the Court thinks fit and hence absolutely there is no impediment or hurdle or legal barrier putforth by the Rule in allowing any additional statement subsequent to the written statement and the only shot provided in the arms of the court for granting leave is that it could allow the application on such terms as it thinks fit. The same power could also be suo motu exercised by the Court as per the concluding part of the Rule. The Rule has been liberally construed so far as the Court granting the leave to present such additional statements and discretion is given to the Court either to allow or to reject and while allowing it could do the same on such terms as the court thinks fit. Therefore, it could be safely concluded that in all such cases, wherein the defendant approaches the court with an application under Order 8 Rule 9 of the Civil Procedure Code praying to grant leave, Courts are expected to be liberal in granting the leave but of course on terms as the Court thinks fit in the circumstances of the individual case."
12. In the above judgment, this court held that under Order 8 Rule 9 C.P.C. when an application is filed seeking leave, the courts are expected to be liberal in granting the leave but of course on terms as the court think fit in the circumstances of the individual case.
13. In 2001(1) CTC 461 (cited supra), this court held as follows:-
"4. The learned counsel for the petitioner contended that if at all the petitioner wanted to bring forth the new facts, it could at best do only by seeking an amendment to the original statement and the respondent cannot be permitted to file an additional written statement and thereby permit him to put forth a new case than what was pleaded in the original written statement. The learned counsel would rely upon Milind Saran Kothiwal v. Vinai Kumar Gupta, AIR 1987 All.339, State of Rajasthan and another v. Mohammed Ikbal and others, AIR 1999 Raj.169 and Pratap Kumar Rath and others v. Board of Secondary Education and others,AIR 1993 Ori.143. As far as the judgment reported in Milind Saran Kothiwal v. Vinak Kumar Gupta, AIR 1987 Allahabad 339 is concerned, that was a case where a minor on attaining majority wanted to file a fresh written statement superceding the original statement filed by her guardian and it was, in those circumstances, the learned Judge was of the view that at best the minor could seek for amendment of the original statement and the minor cannot be permitted to file a fresh statement superceding whatever contentions raised by the guardian in the original written statement. The very fact that the minor wanted to file a fresh written statement, and thereby supersede the contentions raised in the original written statement filed by the guardian would go to show that the minor wanted to take diametrically a different stand than what was taken in the original statement filed by the guardian. In such circumstances as held by the learned Judge though minor can be permitted to seek for an amendment to the original statement, he cannot be permitted to plead a new case than what was originally pleaded in the written statement. There can be no dispute with the proposition of law stated by the learned Judge but the same is not the case in the case on hand and therefore the said judgment is not applicable here. In the other two judgments cited by the learned counsel, it is held that by filing an additional written statement, inconsistent pleas cannot be permitted to be raised. Hence in the circumstances as stated by me earlier, in the case on hand, the respondent only attempted to reinforce what has been stated in the original written statement by furnishing the details about the suit schedule property which unfortunately, the petitioner has omitted to mention in his plaint which he ought to have done. In such circumstances, it cannot be held that the respondent was attempting to plead a different case than what has been pleaded in the written original statement. Therefore none of the judgments cited by the learned counsel for the petitioner will have any application to the case on hand.
5. The learned counsel then contended that under Order 14 (1) of C.P.C., when issues have been framed, and trial had commenced, the permission now granted by the Court below would only obstruct further progress of the suit which was of the year 1986. When parties are required to raise their respective pleas, so as to later on establish with sufficient materials both documentary as well as oral in support of those pleas raised, when the petitioner has failed to come forward with the details of the suit schedule properties and when the respondent who is in possession of those particulars has come forward to furnish those particulars in its additional written statement, in the interests of justice, the respondent should be permitted to raise those pleas so as to enable him to establish those particulars with sufficient material evidence available with it. In those circumstances, the action of the Court below in permitting the respondent to file the additional written statement cannot be found fault with. As found by me earlier, the respondent by filing the additional written statement has not come forward with a new case except furnishing the details about the suit schedule property. Therefore by permitting the respondent to file the additional written statement, it is not going to in any way dislodge the issues that are to be tried in the suit. Therefore the said contention of the learned counsel for the petitioner also does not merit any consideration. In such circumstances, there being no illegality or irregularity in the order passed by the Court below, there is no scope for interfering with the said order in this revision."
14. In the above decision, this court held that when the person seeking leave is not attempting to plead a different case than what has been pleaded in the original written statement, the leave can be granted to file additional written statement.
15. In 2003-2 L.W. 395 (cited supra), this court held that Order 8 Rule 9 C.P.C. enables the court to accept a written statement filed at a later stage, even after settlement of issues, upon such terms as it may think fit and proper.
16. In 2005(5) CTC 785 (cited supra), this court held as follows:-
"8.True, as seen from the additional written statement, some new pleas have also been taken. Whether this new plea will prevent the plaintiff from succeeding in the case is a matter to be decided at the time of trial, not at the time of receiving the statement. Therefore, the additional written statement wherein an attempt is made to explain the original statement, giving further particulars, cannot be labelled as entirely a new one, disowning the original case. In this context, we have to see the relevant provisions, namely Order 8, Rule 9, C.P.C. Order 8, Rule 9, C.P.C. reads:
"No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claims hall 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 thirty days for presenting the same."
It does not say that no application for receiving the additional statement 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, as provided under Order 6, Rule 17, C.P.C. proviso. The legislators when amended the C.P.C. thought it fit not to allow the party to have amendment, as a matter of right, that too in a case where they had an opportunity to raise the same, at the time of filing the pleading. But, when they come to Order 8, C.P.C., 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 8, Rule 9, C.P.C., power is given to the Court to call for the written statement or additional written statement from any party, fixing time, not exceeding 30 days, thereby showing the provisions of Order 8, Rule 9, C.P.C. is 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. The Courts should exercise their discretion liberally, when it will not affect the right of the party.
9. In this case, the only grievance, if at all for the revision petitioner, as urged before me, must be that when P.W.1 was in the box, that too pending cross examination, subsequent pleadings should not be allowed. By allowing the subsequent pleadings, the right of the plaintiff is not going to be affected and it is for the defendant to prove the subsequent pleadings by letting in evidence, since in the original written statement, he has opposed the claim of plaintiff. The plaintiff can also re-examine P.W.1,if he desires, with the permission of the Court, even to deny the allegations in the written statement. Thus, it is seen, ample opportunity is available to P.W.1, to deny or accept the case projected in the additional written statement, which would go to show, no prejudice would be caused to the plaintiff, though the suit is a part heard one. Order 8, Rule 9, C.P.C. does not say, after commencement of trial, no subsequent pleading shall be entertained by the Court, as said in Order 6, Rule 17, C.P.C. proviso."
17. In the above decision, this court held that Order 8, Rule 9 C.P.C. does not say that no application for receiving the additional written statement should be allowed after the trial has commenced and Under Order 8, Rule 9 C.P.C., wide discretion is given to the court to give a chance to the parties to agitate their rights even raising subsequent plea for which the court should not be rigid and the court should exercise their discretion liberally when it does not affect the rights of the parties.
18. If the law laid down by this court in the above decisions is applied to the facts of the present case, I may have to necessarily hold that the trial court is wrong in rejecting I.A.No.247/2004 filed under Order 8,Rule 9 C.P.C.
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. The 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.
21. Therefore, I am inclined to set aside the order of the trial court and permit the petitioner/defendant to file the additional written statement in O.S.No.99/2004 on condition that he pays a sum of Rs.1,000/- directly to the respondent/plaintiff within a period of two weeks from the date of receipt of copy of this order.
22. It is made clear that if the cost of Rs.1,000/- is not paid within the time stipulated herein,the C.R.P. Will stand automatically dismissed without further reference to the court.
23. This C.R.P. is allowed in the above terms. No costs. Consequently, C.M.P.No.11801/2005 is closed.
sks [vsant 8038]