K. Palanivel vs A. Sivasubramaniam

G. Rajasuria, J.—Inveighing the order dated 24.08.2007, passed by the Additional District Court (Fast Track Court), Namakkal, in I.A.

No. 68 of 2007 in O.S. No. 188 of 2004, this civil revision petition is focussed.

Heard the learned Counsel for the petitioner. Despite printing the name of the respondent, no one represents.

An epitome and summation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run

thus:

(i) The respondent/plaintiff filed the suit O.S. No. 188 of 2004 for specific performance of the agreement to sell making the following prayers:

a) directing the defendant specifically to perform his part of contract as per the terms and conditions contained in agreement of sale dated

14.09.1996 by receiving the balance of sale price of Rs. 4,95,000/- and execute the sale deed in respect of the suit properties in favour of the

plaintiff within the time to be stipulated by this Honourable Court;

b) if the defendant failed to do so, the same may be done by this Honourable Court at the cost of this plaintiff;

c) restraining the defendant, his men, agents, and servants from in any manner alienating or encumbering the suit properties in favour of third parties

by means of permanent injunction;

d) awarding the costs of the suit to the plaintiff by the defendant; and

e) granting such other relief or relief as the Honourable Court may deem fit under the circumstances and necessity of the case and thus render

justice.

(ii) The defendant entered appearance and filed written statement. Subsequently, he got the written statement amended with regard to certain

typographical errors. After cross examination of P.W.1, I.A. No. 68 of 2007 was filed under Order 8 Rule 9 of CPC seeking permission of the

Court to file additional written statement of the defendant. However, after hearing both sides, the lower Court dismissed the application. Being

disconcerted with and aggrieved by the order of the lower Court, this revision petition has been focussed on various grounds.

The learned Counsel for the revision petitioner would put forth his arguments based on the grounds of revision to the effect that in the additional

written statement, the defendant has set out the relevant facts as to how the alleged endorsements found in the suit agreement to sell is a forged

one; relating to the previous suit O.S. No. 134 of 1998 on the file of the District Munsif Court, Rasipuram referred to in the said endorsement

allegedly made by the defendant in the agreement to sell, there was no detailed version objecting to the same in the earlier written statement and

hence the defendant wants to detail and delineate the circumstances relating to the said previous suit and its non application to the present suit by

way of filing the additional written statement.

Perused the additional written statement. In my opinion, the additional written statement does not contain any antithetical stand with the stand

already taken by the petitioner in the written statement. It is a trite proposition of law that while considering the application under Order 8 Rule 9 of

CPC, the prayer of the defendant could be dealt with liberally, but not with same rigour as that expected to be applied for considering the prayer

for amending the plaint. The observation made by the lower Court that there was delay in filing the application to some extent would weigh with the

court as there should be no second thought over it. However, that could be compensated by awarding cost but the delay should not stand in the

way of allowing I.A. Hence in these circumstances, the order of the lower Court is set aside by allowing this civil revision petition and the I.A. No.

68 of 2007 shall stand allowed on cost of Rs. 500/- (Rupees five hundred only) payable by the defendant in favour of the plaintiff within a period

of 15 (fifteen) days from the date of receipt of a copy of this order, failing which this order shall not enure to the benefit of the revision petitioner.

Accordingly, this civil revision petition is allowed. Consequently, connected miscellaneous petition is closed.