N. Srinivasan vs Muthammal

This revision is directed against the order of the learned Principal District Munsif, Villupuram, in IA No.322 of 1997 in OS No.904 of 1995

dated 24.2.1997 rejecting the application filed by the petitioner for filing additional written statement in the said suit.

The said suit was filed by the respondent/plaintiff on the basis of a promissory note alleged to have been executed on 17.11.1992 for a sum of

Rs.3,000 with interest thereon. Hence the suit for a total sum of Rs.3,805 was filed as due from the suit promissory note. The petitioner herein filed

written statement contending inter alia that be had not executed any promissory note on 17.11.1992, and that the suit promissory note has been

filed after correcting the month on which the suit promissory had been executed. It is further contended that it was only in January, 1992 the

defendant had executed the promissory note in favour of the husband of the plaintiff for a sum of Rs.2,500/- and in the written statement certain

further details are also given claiming that the amount due under the promissory note has been realised by the plaintiff and that the claim was barred

by limitation.

The suit was subsequently taken for trial and the plaintiff had examined herself as P.W.1. She was also cross-examined and the plaintiff side was

closed. The defendant also examined himself as D.W.1. But in the midst of examination of D.W.1. in evidence, the present application under

Order 8, Rule 9, CPC was filed by the petitioner for filing an additional written statement.

In the proposed additional written statement the defendant/petitioner contends that it was only when he was in the witness box he had seen the

suit promissory note and found that the signature in the promissory note was not his own, and that therefore, he came to realise that the suit

promissory note was a rank piece of forgery and that therefore, the plaintiff was bound to prove the execution and validity of the suit promissory

note. He has further pleaded that inasmuch as he had seen the promissory note only when he was tendering evidence as D.W.1, he has not cross-

examined the plaintiff with reference to the said allegation. In the affidavit filed in support of the petition for filing written statement also the

defendant had reiterated the same allegations and that he came to know of the forgery in the promissory note only on 27.1.1997. It is further

pleaded that if he is not permitted to file the additional written statement he will be put to loss and hardship.

The respondent/plaintiff filed a counter-affidavit denying the claims of the petitioner. She has pleaded inter alia that the stand now taken by the

defendant was unadulterated falsehood and opportunistic and that the defendant was not entitled to make such a plea. The petition had been filed

only for dragging on the proceedings and the petition had been filed at the very belated stage after the plaintiff had closed her side, and that

allowing the defendant to file the additional written statement would cause grave prejudice to the plaintiff and that the defences open to the plaintiff

were totally lost.

Learned District Munsif after elaborate consideration of the mutual contentions, rejected the application for filing additional written statement and

hence the above revision.

Mr.V.Raghavachari, appearing for the petitioner contends that the failure to plead forgery in the original written statement was only due to

mistake and that since the defendant had seen the promissory note only at the time of tendering the evidence as D.W.1, he came to know that the

suit promissory note had been forged. He would also further plead that even if the pleadings by the defendant in the additional written statement

have to be held as contradictory to the earlier stand taken in the original written statement there was no bar for the defendant to set up such a

pleading in the additional written statement. Learned counsel for the petitioner relies on a judgment of Thangamani, J. reported in, Natarajan v.

Lakshmi Ammal and another 1994 TLNJ 96. Reliance is made on the observation by the learned Judge that the Court may allow either party to

alter or amend the pleadings at any stage of the proceedings in order to determine the real controversy between the parties and it cannot be

refused merely on account of a delay.

Learned counsel for the petitioner also relies on the judgment of K.Venkataswami, J. as he then was, reported in 1990 TLNJ 283. Learned

counsel relies on the observation of the learned Judge that the general rule regarding the amendment of pleadings was that it shall be granted so as

to enable the real question in issue between the parties to be raised on the pleadings particularly when the amendment will cause no injury to the

opposite party. In the said case, leave to additional written statement was refused primarily on the ground that if the same was granted, it will take

away the right already vested in the plaintiffs in the shape of admission in the written statement filed by the petitioners therein. Learned Judge after

considering the views of the earlier rulings, relied on the observations in 81 LW, 15 as applicable to the facts of the case before the learned Judge.

An extract in the said judgment was also relied on by the learned Judge wherein reference was made to a judgment of a Division Bench of this

Court in Subramania Iyer v. Hitchock, wherein it was held that the principles relating to the disposal of an application for amendment of a written

statement raising a plea inconsistent with an earlier admission in the original written statement was made by mistake and that in such a case the

Court should be liberal in allowing the amendment. But where there was a reason to think that the earlier admission was not made by mistake and

that the defendant deliberately changes his mind later, he should not be allowed to amend. On the basis of the above said rulings, Mr.Raghavachari

contends that the objections raised by the plaintiff in the present case on the ground of delay as well as that the proposed amendment was

contradictory to the stand taken in the original statement, cannot hold good and that the proposed amendment should be allowed.

To appreciate the contentions raised by the counsel, it has be seen that the present suit is on a promissory note in which certain statutory

presumptions arise in favour of the plaintiff. Apart from the presumption which is raised u/s 114(C) of the Indian Evidence Act, Section 118 of the

Negotiable Instruments Act, 1981 also raises certain statutory presumptions. u/s 118 of the Negotiable Instruments Act dealing with the

presumption as to the Negotiable instruments Act, it is held that until the contrary was proved the presumption would arise in respect of the

consideration, as to the date of the execution, as to the time of acceptance and transfer etc. Apart from Section 118, u/s 20 of the Negotiable

Instruments Act, a further presumption is raised in respect of the negotiable instrument signed and delivered by a person either wholly blank or

having written thereon, an incomplete negotiable instrument. In the present case, as could be seen from the observation of the learned District

Munsif, D.W.1. has also claimed that he signed on an incomplete and unfilled promissory note. Therefore, in the present case we are dealing with

certain statutory presumptions which accrue in favour of the plaintiff.

In comparison to the presumption which would arise u/s 114 of the Indian Evidence Act, it is settled law that presumption arising u/s 118 of the

Negotiable Instrument Act is statutory and mandatory in character. In, Official Receiver, Kanpur and Another Vs. Abdul Shakur and Others, , the

Supreme Court has held that Section 114 of the Evidence Act was a general provision, but Section 118 of the Negotiable Instruments Act enacted

a Special Rule of evidence which would operate between the parties to the instrument. This Court in, Thirumalai Iyengar Vs. Subba Raja, has held

as follows:-

There is marked contrast between Section 1188 of the Negotiable Instruments Act and Section 114 of the Indian Evidence Act. The statutory

presumptions u/s 118 of the Negotiable Instruments Act is mandatory while the presumption u/s 114 of the Evidence Act is permissive depending

upon the exercise of discretion of the Court.

Therefore, the present case, being a suit on a promissory note the defendant cannot be allowed to deprive the right of the plaintiff to avail the

benefit of the statutory presumptions by pleading a conflicting stand in contradiction with the stand taken in the original written statement.

Mr.Yashod Varadhan, learned counsel for the respondent refers to a ruling of the Supreme Court reported in, Heeralal v. Kalyan Mal and

others, 1997 (10) Sup 6. In the said case, learned Judges considered as to whether it was permissible to allow the parties to plead inconsistent

pleas. In the said judgment a reference was made to an earlier decision of the Supreme Court reported in, Akshaya Restaurant Vs. P. Anjanappa

and Another, . In that case it was observed by the Bench consisting of the two learned Judges, that it was settled law that even the admission made

in the original pleadings can be explained and even inconsistent pleas can be taken in the pleadings. The Supreme Court in Herralal''s case, 1997

(10) Supreme 56 went further to observe that the earlier decision of the Supreme Court consisting of three learned Judges rendered in, Modi

Spinning and Weaving Mills Co. Ltd., and another v. Ladha Ram and Co. 1997 (1) SCR 728 was not taken into account by the latter Bench

consisting of two learned Judges. After having referred to the same Their Lordships have observed as follows:-

7A. .....This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement

contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such

withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the

aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in

Akshaya Restaurant, 1995 Supp.(2) SCC 303. In the latter case it was observed by the Bench of two learned Judges that it was settled law that

even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in

Akshaya Restaurant, 1995 Supp.(2) SCC 303 proceed on an assumption that it was the settled law that even the admission can be explained and

even inconsistents pleas could be taken in the pleadings. However, the aforesaid decision of the three member Bench of this Court in Modi

Spinning, 1997 (1) SCR 728 is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be

allowed which would displace the plaintiff''s case and cause him irretrievable prejudice.

Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiffs case it

could not be allowed as ruled by a three member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned

Judges and to the extent to which the learned decision took a contrary view qua such admission in written statement, it must be held that it was per

incuriam being rendered without being given an opportunity to consider the binding decision of a three member Bench of this Court taking a

diametrically opposite view.

Therefore, the view of the Supreme Court as could be gathered from the judgment reported in Heeralal v. Kalyan Mal and others 1997 (10) Sup

56 is that an amendment which was sought for in the proposed additional written statement was of such a nature would displace the plaintiff''s case,

it cannot be allowed. No such amendments to written statement putting forth inconsistent or alternative plea which could displace the plaintiff''s

case and cause him irretrievable prejudice, can be allowed. Therefore, on the basis of the abovesaid judgment of the Supreme Court, the attempt

on the part of the defendant/petitioner to put forth inconsistent pleas cannot be permitted, also having regard to the fact that the plaintiff cannot be

deprived of the benefit of statutory presumptions as mentioned above.

It is also to be noted that there is absolutely no bonafides on the part of the defendant to have come forward with a belated petition for

amendment even though he pleads that he had seen the promissory note only when he was in the witness box. Such a plea cannot be accepted

having regard to the clear stand taken by him in the original statement. As stated earlier, in the original written statement he has specifically pleaded

that the month as found in the promissory note had been corrected, that he had executed the promissory note only in the month of January, 1992

and not in November, 1992. Such a pleading could not have been made without having seen the suit promissory note and therefore, the contention

that the defendant had seen the suit promissory note only when he was in the witness box cannot be accepted and has to be held as false. It is also

pertinent to note that in this case the plaintiff after examining herself as P.W.1 has closed her case and in the midst of examining himself as D.W.1

the defendant has come forward with the present petition for amendment of the written statement. In a decision reported in, Murthi Gounder v.

Karuppanna Gounder, AIR 1976 Mad. 302 C.J.R.Paul, J. had occasion to consider the effect of filing belated additional written statement and

considering the stage of which the application was filed, learned Judge has held that undoubtedly prejudice would be caused to the plaintiff

necessitating the filing a reply statement and framing of fresh and different issues for consideration.

Therefore, viewed from any angle the attempt on the part of the defendant/petitioner to amend the written statement and to file the additional

written statement cannot be countenanced.

For the above mentioned reasons there are no merits in the revision and the same is dismissed. No costs.