Mrs. N. Vimala rep. by her Power Agent Mr. M. Nagarajan vs K. Krishnan, Mrs. Prema, Sivakumar and K. Boopathy

V. Periya Karuppiah, J.—This Civil Revision petition has been filed by the plaintiff against the order dated 22.01.2008 made in I.A. No.

1310 of 2007 in O.S. No. 16 of 2007 on the file of the District Munsif, Tirupur allowing the application filed under Order 8, Rule 9 of CPC by the

defendant to receive the additional written statement.

The case of the parties before the trial Court in brief is as follows:

(a) According to the defendants the suit was for bare injunction. The plaintiff claimed title in respect of land comprised in S.F. No. 131 and also

passage right over. The defendants filed their written statement stating that they purchased 17491 = square feet of land comprised in S.F. No. 131

of 3 of Neruperichal Village by virtue of sale deed dated 27.09.2000 from one Dhanalakshmi @ Danammal and they made improvement in the

suit property. The plaintiff is not entitled to the extent mentioned in the suit schedule. The Revenue Divisional Officer in his proceedings had given a

specific sub Division in No. 131 of 6 in respect of the road and stated that extent was 13 = cents. The road was for common enjoyment. The

plaintiffs could have purchased less than 50 cents. Therefore, it has become necessary for the defendants to file the additional written statement

explaining the details.

(b) According to the plaintiff, the said Dhanalakshmi owned 90 cents of land in S. No. 131 of 3 out of which 17941 = cents had been sold to the

defendants and the remaining 50 cents had been sold to the plaintiff and mutations were also effected. No doubt, the land in S.F. No. 131 of 3

situate on the northern side of 30 feet road and the petition mentioned property is in the possession of the plaintiff. It is in correct to say that after

formation of the road, the said Dhanammal possessed only 87 = cents and the road was laid on 13 = cents. The Additional Written Statement has

been filed suppressing the real fact that 40 cents alone sold to the defendants and 50 cents were sold to the plaintiffs. In view of the inconsistent

pleas in the written statement and the additional written statement, the character of the proceedings will be changed. Hence, the petition is liable to

be dismissed.

The trial Court after having heard both sides ordered reception of additional written statement by allowing the application filed by the

defendants. Challenging the above said order of reception of additional written statement, the present civil revision petition has been filed.

Heard both Mr. M. Rajasekaran, learned Counsel appearing for the Revision Petitioner and Mr. T.M. Hariharan, learned Counsel appearing for

the respondent.

The learned Counsel for the Revision petitioner would submit that the trial Court had wrongly permitted the defendants to file Additional Written

Statement raising pleas contrary to the pleas taken in the original written statement which is not permissible in law. He would further submit that the

trial Court had failed to follow the proposition of law to the effect that if the new plea is altering the nature of the suit, such plea bearing Additional

Written Statement cannot be entertained. He would also submit that the defendants have filed the petition for reception of Additional Written

Statement after a long delay in order to prolong the proceedings and the trial Court had mistakenly understood the case put forth by the plaintiff

that she had purchased only 87 = cents; whereas she had purchased 90 cents from her Vendor. Therefore, the order of the trial Court is required

interference of this Court.

The learned Counsel appearing for the respondents would on the other hand contend that the trial Court had thoroughly discussed the matter

and had rightly come to the conclusion that there was no plea taken in the Additional Written Statement contrary to the plea raised in the original

written statement and as the suit was pending, it had permitted the defendants to file the Additional Written Statement. The contention raised by

learned Counsel appearing for the revision petitioner that the pleas raised in the Additional Written Statement are contrary to the pleas made earlier

in paragraphs 10 and 14 of the original written statement are not correct and the trial Court had rightly found that there was no inconsistency

between the additional written statement and the original written statement. The defendants are entitled to raise even inconsistent pleas in the

written statement provided those please are not mutually destructive against each other. He would in support of his contention rely upon the

judgments of this Court reported in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., . He would also draw the attention of this

Court to the judgment reported in Sri Srinivasmurthy Mandiram Vs. Mrs. Gnanasoundari, ; 2005 (5) CTC 785 (Muthusamy v. Thangaraj) and

Muthuraman Vs. Muthukumaran, .

The learned Counsel for the respondent would also submit that the amendment of plaint and written statement are different in nature and the

filing of additional written statement is equivalent to amendment of written statement and the amendment of written statement is governed by certain

principles different from amendment of the plaint. He would also submit that the pleas raised in the Additional Written Statement ordered to be

received by the trial Court does not contain any plea mutually destructive against each other much less any inconsistent plea. Therefore, he would

submit that there there is no infirmity in the order passed by the trial Court permitting the defendants to file their additional written statement and

urge this Court to dismiss the civil revision petition.

I have given my anxious consideration to the submission made on either side. The main contention raised by the learned Counsel for the revision

petitioner is that the additional written statement was filed by the defendants long after the suit has ripened for trial and it was only with an intention

to prolong the suit and the pleas raised in the additional written statement are not explanatory but are inconsistent pleas with that of the pleas taken

in the original written statement. Therefore, it is not permissible as per the judgment reported in 2004 (3) MLJ 603 (T.R. Govindasamy and Ors. v.

T.R. Natarajan and Ors.). The relevant page of which would run thus:

In this case, by the original written statement no benefit of statutory presumption was given to the plaintiffs and by filing the additional written

statement also, no attempt is made to deprive the same. As aforementioned, in the original written statement, the execution of settlement deed is

admitted and in the additional written statement also, it is reiterated, labeling the same as invalid, in view of the admission made by P.W.1. i.e., the

plaintiff himself. In this view, the ruling relied on by the learned Counsel for the plaintiffs/respondents is of no use to them.

At the same time as cited by the learned Counsel for the respondents in Sri Srinivasmurthy Mandiram Vs. Mrs. Gnanasoundari, it has been held

thus:

...It does not say that the subsequent pleading viz., additional written statement should be consistent with the original written statement. It also does

not say, that the ground of defence, which had arisen, after the institution of the suit alone should be included in the additional 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 that kind of plea also, Order VIII, Rule 9 is intended

In 2005 (5) CTC 785 Muthusamy v. Thangaraj it has been held thus:

...Under Order 8, Rule 9 CPC 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.

On a careful perusal of the aforesaid judgments of our High Court, it could be seen that the defendants can raise additional pleas by way of

filing additional written statement during pendency of the suit in order to explain or ascertain or reiterate the original pleas. Therefore, the point that

has to be seen is that whether the pleas raised in the additional written statement are inconsistent with the pleas already raised in the original written

statement. In the typed set of papers produced by the revision petitioner/plaintiff, the additional written statement said to have been filed by the

respondents/defendants is also enclosed wherein it has been stated that the vendor of the plaintiff was having an extent of 87 = cents after the

formation of the road and thereafter the said vendor was having right only to the extent of 47 = cents and not 50 cents of land as claimed by the

plaintiff. The said plea as set out in para-10 of the original written statement is not inconsistent because, the defendants were disputing the extent of

property claimed by the plaintiff and not regarding the title. Para-14 of the written statement would mean that the defendants have not encroached

upon the land of the plaintiff. The trial court had also found that there is no inconsistent plea and therefore, it had permitted the defendants to file the

additional written statement.

Apart from that, as rightly cited by the learned Counsel appearing for the respondent, the judgment of Apex Court reported in Baldev Singh

and Others Etc. Vs. Manohar Singh and Another Etc., would go to show that the defendants are entitled to raise inconsistent defence all that the

same may not be permissible in the case of the plaintiff. The relevant passage of the above said judgment would run thus:

This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the

same may not be permissible in the case of plaint. In Modi Spg. And Wvg. Mills Co. Ltd. v. Ladha Ram and Co. this principle has been

enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement.

Accordingly, the High Court and the trial Court had gone wrong in holding that the defendant-appellants are not allowed to take inconsistent pleas

in their defence.

On a careful perusal of the entire judgment, it could also be seen that the Courts should be extremely liberal in granting permission to amend

the pleadings, unless serious injustice or irreparable loss is caused to the other side. Therefore, it could be very well seen that the defendants could

even raise inconsistent pleas or alternative pleas in the form of additional written statement. As far as, this case is concerned, it had already been

found that the pleas raised in the additional written statement were not even inconsistent to the earlier pleas raised in the original written statement.

This Court therefore, sees that there is no infirmity in the order passed by the trial Court and the judgment relied on by the learned Counsel for the

revision petitioner reported in T.R. Govindasamy and Ors. v. T.R. Natarajan and Ors. 2004 (3) MLJ 603 is not helpful to the revision petitioner.

The revision petition fails and the same is liable to be dismissed.

In fine, Civil Revision Petition is dismissed. No costs.