Madras High Court
Chinnammal vs Shanmugam on 17 October, 2006
Equivalent citations: AIR 2007 (NOC) 534 (MAD.), 2007 (3) AKAR (NOC) 236 (MAD)
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.10.2006 Coram: The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(PD) No.366 of 2005 Chinnammal .. Petitioner vs. 1.Shanmugam 2.D.Subramanian 3.D.Sakthivel .. Respondents Revision Petition filed against the order dated 30.12.2004, passed in I.A.No.747/2004 in O.S.No.87/1998 on the file of the II Addl. District Munsif Court, Coimbatore. For Petitioner : Mr.J.Pothiraj For Respondents : Mr.M.Baskaran ORDER:
This Revision Petition has been filed against the order dated 30.12.2004, passed in I.A.No.747/2004 in O.S.No.87/1998 on the file of the II Addl. District Munsif Court, Coimbatore.
2. The plaintiff is the revision petitioner.
3. The plaintiff filed O.S.No.87/1998 on the file of the 2nd Addl. District Munsif Court, Coimbatore for a permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment and running the mess by the plaintiff. The suit was resisted by defendants 1 to 3 who are respondents 1 to 3 herein by filing a written statement wherein it is clearly stated that the plaintiff is never in possession and enjoyment of the suit schedule property. The trial has already commenced and the plaintiff was examined in chief as P.W.1 and the suit was posted for cross-examination of P.W.1. At that time the defendants filed I.A.No.747/2004 under Order 8 Rule 9 C.P.C. to grant leave to file additional written statement and the same was opposed by the plaintiff. The trial court by order dated 30.12.2004 allowed I.A.No.747/2004 and aggrieved by the same the plaintiff has filed the above revision petition under Article 227 of the Constitution of India.
4. Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondents. I have also gone through the documents filed and the judgments referred to by them in support of their submissions.
5. The learned counsel for the revision petitioner/plaintiff submitted that having stated in the original written statement that the plaintiff was never in possession of the suit schedule property, the defendants are now trying to introduce a new case in the additional written statement by stating that the plaintiff is a tenant and was paying rents up to 1997. As both the pleas are mutually destructive, the same should not be permitted to be raised by filing an additional written statement. He relied on the decisions of this court reported in AIR 1953 Madras 492 (chidambaram v. Subramanian) and AIR 1976 Mad.302 (Murthi Gounder v. Karuppanna).
6. Per contra, the learned counsel for the respondents submitted that there is nothing wrong in receiving the additional written statement and he relied on the following decisions in this regard:
(1) 2003(1) CTC 553 (Thirupathi v. Kothai Aachi) (2) 2004-3-L.W. 412 (Sri Srinivasmurthy Mandiram v. Mrs.Gnanasoundari) (3) 2004-4-L.W. 699 (Shanmugam v. Vijayarangam & another) (4) 2005(4) M.L.J. 119 (Muthusamy v. Thangaraj)
7. I have considered the rival submissions carefully.
8. It is the case of the plaintiff that the defendants are the owners of the suit schedule property and the father of the defendants received a sum of Rs.25,000/- in the year 1964 from the plaintiff and gave her possession of the suit schedule property. This was denied categorically by the defendants by contending that the plaintiff was never in possession and enjoyment of the suit schedule property. The original written statement was filed in June 1998. It is not in dispute that the suit is now posted for cross-examination of P.W.1. At this stage, i.e. after about 5-1/2 years, on 24.11.2004 the defendants have filed a petition under Order 8 Rule 9 C.P.C. to grant leave to file additional written statement wherein they wanted to plead that the plaintiff is a tenant and she was paying rent up to 1997. The trial court allowed the application on the ground that no prejudice would be caused to the plaintiff if the additional written statement was allowed to be filed by the defendants.
9. In AIR 1953 Madras 492 (cited supra), a Division Bench of this court held that if the plea put forward in the additional written statement is unsubstantial and belated, and the defendant not having personal knowledge of the matter pleaded, the application for filing additional written statement is to be rejected.
10. In AIR 1976 Mad. 302 (cited supra), this court held as follows:-
"8. Undoubtedly, a defendant is entitled to file a written statement containing inconsistent pleas. This has been made clear by the decision in Bava Rowther v. Sulaiman Rowther, 32 Mad L.W. 61 = (AIR 1930 Mad 814). But certain other considerations would have to be taken into account when a petition is filed for permission to receive an additional written statement containing pleas, some of which are inconsistent with the pleas taken in the original written statement. As observed by Rajagopalan J. in Md. Ibrahim v. Ahmed Maricar, AIR 1949 Mad 541, where an apparently inconsistent plea is put forward in an additional written statement, it has to be considered whether it is expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage. In that case, the suit had not come up for trial and hence, Rajagopalan J. observed "I am unable to see how the proposed additional plea, though inconsistent, would embarrass the trial of the suit."
"9. It is stated in the affidavit filed in support of the petition to receive the additional written statement that by inadvertence, some important pleas were omitted to be stated. It is stated by the learned counsel for the revision petitioner that from the Panchayat records, his client came to know that there was a cart track in existence in the place where the present pucca road has been put up by the Panchayat. This is not a case where by mere inadvertence, certain pleas were not put forward. This is a case where nearly two years after having filed his written statement, the first defendant had acquired some further information and wanted to set up a case which is different from the case which he had originally set up in his written statement. Considering the stage at which such an application has been filed, undoubtedly, prejudice would be caused to the plaintiff who will now be forced to file a reply statement and as a consequence thereof, fresh and different issues will have to be framed and the trial would have to begin once over again. Taking these circumstances into consideration, I am of the view that the learned District Munsif rightly refused to permit the revision petitioner to file the additional written statement. I see no ground to interfere. The petition is, therefore, dismissed."
11. In the above decision, this court held that undoubtedly prejudice would be caused to the plaintiff when new plea is put forward at a belated stage and the plaintiff will now be forced to file a reply statement and as a consequence thereof, fresh and different issues will have to be framed and the trial will have to begin once over again.
12. In 2003(1) CTC 553 (cited supra), this court held as follows:
"8. Order 8, Rule 9 CPC 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, however, the Rule contemplates the leave of the Court before any party can present a further pleading after the written statement has been filed. This Rule invest the Court with widest possible discretion and enables it to accept additional written statement."
13. In the above decision this court permitted the defendant to raise objection under Sec.21 of CPC as to the jurisdiction of the trial court by filing additional written statement under Order 8 Rule 9. The facts of this case are different and distinguishable.
14. In 2004-3-L.W. 412 (cited supra), this court held that considering the inconsistent stand taken by the defendant, the additional written statement cannot be described as unnecessary, scandalous frivolous or vexatious.
15. In 2004-4-L.W. 699 (cited supra), this court held that mere delay in filing the additional written statement will not take away the right of the party and the trial court ought not to have gone into the merits of the additional written statement at the stage of granting leave to file.
16. In 2005-4-M.L.J. 119 (cited supra), this court held that Order 8 Rule 9 CPC is liberal in its application and Order 8 Rule 9 CPC does not say after commencement of the trial no subsequent pleading shall be entertained by the court.
17. It is true that Order 8 Rule 9 CPC is to be considered liberally and mere delay in filing the application should not be held against the applicant. At the same time what has to be considered is whether by way of filing additional written statement, a new plea which is mutually destructive to the earlier plea is to be allowed to be raised for the first time that too after the trial has commenced.
18. In the original written statement, the defendants pleaded that the plaintiff was never in possession and enjoyment of the suit property. In the additional written statement the defendants wanted to plead that the plaintiff is a tenant and she was paying the rent up to November 1997. This is not only a new plea but also raised after the commencement of the trial that too after 5-1/2 years, it is also mutually destructive to earlier plea. In such circumstances, the law laid down by the Division Bench of this court reported in AIR 1953 Mad. 492 (cited supra) will apply as here also the defendants have no personal knowledge about the claim of the plaintiff which happened in the year 1964. As held by this court in AIR 1976 Mad. 302 (cited supra), if the additional written statement is allowed, this would cause definite prejudice to the plaintiff who will be forced to file a reply statement and as a consequence thereof, fresh and different issues would have to be framed and the trial has to begin once over again.
19. Therefore the trial court is wrong in holding that no prejudice would be caused to the plaintiff if additional written statement is to be filed.
20. In the result, the C.R.P. is allowed and the order of the trial court passed in I.A.No.747/2004 in O.S.No.87/1998 dated 30.12.2004 is set aside. No costs. C.M.P.No.3445/2005 is also closed.
sks To The II addl. District Munsif, Coimbatore.
[PRV/8393]