H. Ramachandra Rao vs A. Mohideen

S.S. Subramani, J.—Defendant in O.S. 7118 of 1996 on the file of II Assistant City Civil Judge, Madras is the revision petitioner.

Respondent herein filed a suit for specific performance in December 1990 and petitioner filed written statement in July. 1992. Thereafter, the case

was included in the list and plaintiff''s evidence was also closed. When the case was posted for defence witnesses, an application was filed to

receive additional written statement in March, 1999. By the impugned order, lower Court dismissed that application. Lower court refused to grant

leave holding that the Same is filed at belated stage and no reason is given why this contention could not be raised in the earlier written statement.

The same is under challenge in this revision petition u/s 115 of Code of Civil Procedure.

I heard the learned counsel for petitioner.

Order 8, Rule 9 of CPC reads thus,

No pleading subsequent to the Written Statement of a defendant other than by way of defence to a set-off (or counter-claim) shall be presented

except by the leave of the Court and upon such terms as the Courts 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 for presenting the same.

A.N. Saha on the Code of Civil Procedure, 5th edition (First Volume), commenting on Order VIII Rule 9 has said thus,

... The rule requires leave of the Court before any party can make a further pleading after written statement has been filed. Where a defendant

intends to file additional written statement, he must file an application showing the circumstances as to why he failed to raise the plea in the original

written statement, and the other party must be given opportunity to meet the motion.

As early as in Nanjan Vs. Selai and Others, , this Court has held thus,

If the party wants to file an additional written statement, he has to file a petition stating the reason why he failed to say these things in the original

written statement, and what excuse there is for allowing him to file an additional written statement at that stage. Then the other side has to be given

an opportunity to oppose the petition and contend that such additional written statement should not be entertained at that stage. Then the Court has

to give its decision as to whether the additional written statement is to be admitted or not.

(Emphasis supplied)

In the affidavit in support of the application seeking leave, no reason is given why the contention now sought to be raised was not taken earlier.

In the affidavit in support of the application it is alleged that defendant after the agreement for sale has put up multi-storeyed construction in the

property and having invested huge amounts on the building, it will be inequitable for Court to grant specific relief. He only said that he has invested

huge amounts for putting up the construction. When the affidavit does not disclose any reason for not taking this defence earlier court was justified

in rejecting the application. It is also settled law that while granting leave, Court will have to consider the stage of the suit, delay on the part of party

on seeking leave and how far the opposite party will be put to hardship if leave is granted. In this case, entire evidence of plaintiff is over. If fresh

pleadings are allowed to take place, plaintiff will be put to hardship and entire case will have to be reopened. First written statement was filed in the

year 1992 and it was seven years after leave is sought for to file additional written statement. Why petitioner waited for these seven years for filing

the application is nowhere stated in the affidavit.

Petitioner cannot contend or insist that Court must receive additional pleadings as of right. Permission has to be obtained under Order 8, Rule 9

of Code of Civil Procedure. Under what circumstances leave is to be granted and how the discretion is to be exercised, depend on the facts and

circumstances of each case. In all such cases, party who seeks leave has to explain as to why this contention was not raised in the earlier pleadings.

While exercising discretion, the Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how far the opposite

party will be put to hardship, etc.

In this case, lower court has considered all the facts and circumstances and rightly rejected the application under Order VIII Rule 9 of CPC In

the result, the revision is without any merit and I dismiss the revision petition. No costs. Consequently, C.M.P. No. 13024 of 1999 is also

dismissed.