BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CRP(PD)(MD)No.2311 of 2011
Sengolraj ... Petitioner
Subramanian Chettiar ... Respondent
This Civil Revision Petition is filed against the order dated 16.08.2011 made in IA.No.41/2011 in OS.No.38/2010 by the learned Additional District and Sessions Judge (FTC) Pudukkottai.
!For Petitioner ... Mr.K.Balasundharam
^For Respondent ... Mr.A.Arumugam
The Revision Petitioner, who is the 1st Defendant in the suit in OS.No.38/2010, aggrieved by the order dated 16.08.2011 made in IA.No.41/2011 in OS.No.38/2010 by the learned Additional District and Sessions Judge (FTC) Pudukkottai in not allowing Additional Written Statement.
2. The Respondent as Plaintiff had filed the above said suit for specific performance of the agreement of sale executed by the parents of the 1st Defendant, namely, Arulandhu Servai and Gnanasoundari dated 14.5.1994 and 8.7.1996 and for permanent injunction restraining the Defendants from interfering with possession and enjoyment of the Plaintiff.
3. The Revision Petitioner, who is the 1st Defendant in the suit, on his behalf and on behalf of the other Defendants filed a Written Statement denying the execution of agreement of sale by Arulandhuservai and his wife Gnanasoundari and pleaded that they have not executed any document in favour of the Plaintiff.
4. The trail had commenced and the Plaintiff was examined in chief. In the mean time, the 1st Defendant filed an application in IA.No.41/2011 under Order 8 Rule 9 and Section 151 of CPC for reception of additional Written Statement which was dismissed. The 1st Defendant had challenged the said order by this Civil Revision Petition.
5. This court heard Mr.K.Balasundharam, the learned counsel for the Petitioner and Mr.A.Arumugham, the learned counsel for the Respondent.
6. The learned counsel for the Petitioner would contend that the Defendants have denied the execution of sale agreement by the executants and the additional Written Statement is only an explanatory defence to the plea stated in the original Written Statement. There was no conflicting stand taken by them between the earlier statement and the additional statement. He would contend that even assuming that they are inconsistent with the previous statement, the Defendants could take such a stand, which cannot be levelled as vexatious or prejudicial to the Plaintiff.
7. The learned counsel would submit that when the Defendant approaches the court with an application under Order 8 Rule 9 of CPC praying to grant leave, courts are expected to be liberal in granting the leave and in support of his above said contention relied on the decision of this court reported in 1999-III-CTC-52 (Subramanian and three others Vs. Jayaraman) and 2010-5-CTC-198.
8. Per contra, the learned counsel for the Respondent would contend that the averment in the additional Written Statement are not only diametrically opposite to the original stand taken by the Defendants in the Written Statement, but also likely cause prejudice to the Plaintiff. He placed reliance on the decision of this court reported in 2007-5-CTC-722 (Muthuraman Vs. Kuthukumaran) to substantiate his contention.
9. In this context, one should remember Order 8 Rule 9 of CPC which gives ample power to the court to grant leave for filing additional Written Statement from any of the parties to the suit and it does not restrict prescribing what is the defence that has to be taken. It does not say that the subsequent pleading viz. additional Written Statement should be consistent with the original Written Statement. Therefore, generally if any defence had not been taken in the original Written Statement though it was available, that could be taken by filing additional Written Statement and only to enable the Defendant to raise such kind of plea Order VIII Rule 9 9 of CPC is intended.
10. In the instant case, as already stated, both the documents of agreement of sale dated 14.5.1994 and 8.7.1996 are emphatically denied by the Defendants. It is further stated that Arulandhuservai and Gnanasoundari have not executed any document in respect of the suit property. Further, it has been averred that the documents have been forged by the Defendants. It is relevant to extract the actual words made in the original Written Statement as under:- @tHf;Fr;brhj;Jf;fis bghWj;J mry; Mtz';fs; rl;lj;jpw;F g[wk;ghf Vnjh xU tifapy; fpilf;fg;bgw;wjd; mog;gilapy; nghh;$hpahf Mtz';fs; jahh; bra;Jbfhz;L. ,t;tHf;F jhf;fy; bra;Js;s fhuzj;jpdhy; thjp nfhhpa[s;s ghpfhuk; rl;lg;go fpilf;fj;jf;fjy;y/ tHf;Fr;brhj;Jf;fis bghWj;J thjp cz;ikapnyna fpiuaj;bjhif bfhLj;J fpiua vf;hpbkz;l; nghl;oUg;ghnuahdhy; chpa fhyj;jpy; gjpe;njh my;yJ mjw;fhd rl;gg;goahd eltof;if vLj;jpUg;ghh;/ mt;thW vLf;fhjjpypUe;nj mitfs; bgha;fs; vd;gJ ed;F bjspt[@
11. So, a specific plea has been made that the documents are forged by the Plaintiff. In the additional Written Statement, it is averred that the Defendants' father had borrowed money from the Plaintiff and the latter had obtained a mortgage deed from the parents of the 1st Defendant. It is further stated that the signature of Gnanasoundari found in the document dated 14.5.1994 differs from the signature found in the document dated 8.7.1996. So according to the Defendants, the Plaintiff had taken a mortgage deed from them and used it as an agreement of sale. It cannot be termed as inconsistent plea taken by the Defendants.
12. The averments made in the additional Written Statement only shows that an additional approach has been made to the facts already made in the original statement. If facts are pleaded in some form or other and then an additional approach is made to those facts, then, it cannot be said to amount to introducing a new case. Testing on the yardstick that whether a new case has been made or mutually inconsistent plea has been made, in my opinion, it cannot be said to be making out a new case which may be said really going to cause injury or substantial injustice to the Respondent/ Plaintiff.
13. Even assuming that the defence taken in the additional Written Statement is just inconsistent with the original defence, it is an admitted position that the Defendant could take inconsistent plea and which plea he relies on or on which defence, he could succeed, are all materials to be decided at the time of the trial. Therefore, on merely stating that the plea is inconsistent, the additional Written Statement cannot be rejected.
14. At this juncture, it is relevant to refer to the judgement reported in AIR-1995-SC-1498 (Akshaya
Restaurant Vs. P.Anjappar) wherein the Honourable Supreme Court has held that by way of amendment even on admission can be explained and even inconsistent pleas could be taken.
15. Thus, in my considered opinion, the additional Written Statement cannot be said to cause any irreparable lose or injury or prejudice to the Plaintiff. Therefore, the order rejecting the additional Written Statement of the Defendant is not justified and as such, the impugned order is liable to be set aside.
16. In the result, this Civil Revision Petition is allowed and the impugned order dated 16.08.2011 is set aside. The Trial Court is directed to dispose of the suit, on merits and in accordance with law, as expeditiously as possible. No costs. Consequently, the connected MP is closed.