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Judgment
R. Banumathi, J.—These two Revisions arise out of the Common Order of the District Munsif, Tiruvallur, made in I.A.Nos. 631 and 630 of
2002 in O.S.No. 212 of 1989, dated 09-10-2002, dismissing the Petitions filed under Order 8 Rule 9 C.P.C. declining to receive Additional
Written Statement. The Defendants are the Revision Petitioners.
The relevant facts for disposal of these Revision Petitions could briefly be stated thus:-
a) O.S.No. 212 of 1989:- The minor Plaintiff has filed this Suit for permanent injunction, restraining the Defendants from in any manner interfering
with the possession of the suit property. The case of the Plaintiff is that the suit property originally belonged to his paternal grandfather Perumal
Reddy. The said Perumal Reddy has executed a Registered Will dated 19-01-1987, while he was in a sound disposing state of mind. The said
Perumal Reddy died on 24-07-1988. The minor Plaintiff has become the absolute owner of the property, on the death of the Testator. The suit
property is in S.No. 237/5, which is inclusive of a Flour Mill and its accessories. The Second Defendant was only a lessee of the suit property. On
demand, the lessee and his son handed over the possession of the suit property to the next friend of the minor Plaintiff in the presence of Balarama
Reddy of Palavakkam Village, who was the Ex-President of Village and Munuswamy Reddy of Perundurai Village. Aggrieved over the Will given
in favour of the minor Plaintiff, the First Defendant has been attempting to trespass into the suit property. The First Defendant is the co-brother of
the next friend of the Plaintiff (Father Natarajan). After taking into possession of the property, the father of the Plaintiff locked the premises and left
for Madras on 10-03-1989. Thereafter, he was informed that the First Defendant broke open the Flour Mill and made an attempt to run the same,
but, he was prevented by the Servants of the Plaintiff''s next friend. The Plaintiff''s next friend has given a police complaint to Uthukkottai Police
Station. Emboldened by the act of the First Defendant, the Second Defendant also joined in the act of trespass. Hence, the Plaintiff has filed the
Suit for permanent injunction, restraining the Defendants and their men from in any manner interfering with the peaceful possession and enjoyment
of the suit property.
b) Denying the averments in the Plaint, the First Defendant has filed the Written Statement stating that he is a practising Advocate and the Suit has
been filed only to defame his reputation. The Plaintiff had not produced any document to prove his possession. The First Defendant''s wife alone is
having interest in the suit property and that she has let out the same to the Second Defendant. The Station House Officer, Uthukkottai P.S., after
due investigation and enquiry directed the Plaintiff to go to the Court for recovery of possession of the suit property. In fact, only the Plaintiff tried
to take forcible possession of the suit property from the Second Defendant. The entire Village is aware of the factum of possession by the Second
Defendant. Perumal Reddy and Balasubramani Reddy @ Kuppusamy Reddy, made a family arrangement on 12-07-1981 amongst themselves in
the presence of two respectable citizens - leading Advocates and Ex-Chairman of Villivakkam Panchayat Union and others. Both, Perumal Reddy
and Balasubramani Reddy, agreed that the suit property should be enjoyed by Balasubramani Reddy @ Kuppusamy. In proof of the family
arrangement, both of them have signed admitting the contents in the presence of the Panchayat Members. When that being so, Perumal Reddy
have no power to bequeath the suit property to the Plaintiff through the alleged Will dated 19-01-1987. At the time of bequeathing, Perumal
Reddy was not the owner of the suit property.
c) The Second Defendant is the lessee under the First Defendant''s wife. After the amendment in 2000, the Third Defendant had filed a Written
Statement on 14-12-2001, denying the execution of Will by Perumal Reddy. It is alleged that the Plaintiff is not in possession of the suit property
and that only the Third Defendant is in possession of the suit property. The Plaintiff gets right only after the Testator''s wife Muniammal. The
Plaintiff has not placed any material to prove his possession.
d) The trial commenced and P.Ws. 1 and 2 were examined. P.W.2''s evidence was completed on 18-04-2002. At that stage, on 26-04-2002
I.A.Nos. 631 and 630 of 2002 were filed by the Defendants 1 and 3 seeking the leave of the Court to file Additional Written Statement. In the
supporting affidavit, it is alleged that certain material facts have been omitted to be pleaded in the Written Statement. The mistake is neither wilful
nor deliberate. According to them, material defences are available with them to disprove the Plaintiff''s case. Contending that no prejudice or
hardship would be caused to the Plaintiff by allowing the Application under Order 8 Rule 9 C.P.C., the Defendants 1 and 3 have filed these
Applications to receive the Additional Written Statement.
e) Both the Applications were resisted by the Plaintiff alleging that the Applications have been filed after the Plaintiff''s evidence was completed and
after prolonged adjournment at the instance of the Defendants for cross-examination of the Plaintiff and his witness. Only after taking several
adjournments for adducing evidence on their side, the Applications have been filed to receive the Additional Written Statement. It is further alleged
that if the Additional Written Statement is received, the Plaintiff would be subjected to much prejudice and hardship. The allegations that by
oversight the Defendants had omitted to plead is not the sufficient reason for allowing the Additional Written Statement. Alleging that the Rice Mill
was never in the name of Balasubramani Reddy and that there was no family arrangement/settlement, the Plaintiff has strongly opposed allowing of
the Applications.
f) Upon consideration of the averments in the affidavit and in the counter statement, the learned District Munsif, pointing out that there is
considerable delay in filing the Application, has dismissed the Applications. Pointing out that the First Defendant is a practising Advocate and not
an illiterate, the learned District Munsif was of the view that the First Defendant cannot take shelter by simply stating that ""by oversight"" that plea
had been omitted to be pleaded in the Written Statement already filed. Pointing out the delay and the stage of the litigation, the learned District
Munsif was of the view that if the Application is allowed much hardship would be caused to the Plaintiff. Holding that no sufficient reason had been
shown for filing the Additional Written Statement belatedly, the learned District Munsif, has relied upon the decisions reported in 2000 I L.W. 821
and 2000 I L.W. 420.
Aggrieved over the dismissal of the Applications, the Defendants 1 and 3 have preferred these Revisions. The learned counsel for the Revision
Petitioners has contended that when the Plaint has been amended several times -- amended for possession and impleading of D3 as Party --
opportunity is to be given to the Defendants to file the Additional Written Statement. Submitting that, there is no delay in filing the Additional
Written Statement, the learned counsel for the Revision Petitioners has contended that wide power is conferred upon the Court under Order 8
Rule 9 C.P.C. in receiving the Additional Written Statement. It is further submitted that by receiving the Additional Written Statement, no hardship
or prejudice would be caused to the Plaintiff.
Countering the arguments, the learned counsel for the 3rd Respondent/Plaintiff has elaborately submitted that after the amendments, sufficient
opportunity had been given to the Defendants to file the Written Statement. It is further submitted that when the Written Statement had been filed
earlier in 1991, the Written Statement filed nearly 11 years thereafter setting forth entirely new facts cannot be entertained. It is also submitted that
those facts were available even at the time of filing the Written Statement in 1991 and no acceptable reason has been stated for the omission of
those plea. It has been further submitted that when the plea and the facts set forth in the Additional Written Statement are not merely confined
regarding the amendment, the trial Court has rightly dismissed the Applications.
The learned counsel for the 3rd Respondent/Plaintiff has also submitted that, if really the Defendants are to plead any new defence, they ought to
have taken steps only for amendment of the Written Statement and the Application under Order 8 Rule 9 C.P.C., cannot be entertained.
Upon consideration of the contentions of both the parties, the impugned order and other materials on record, the following points arise for
consideration in these Revisions:-
i. Is not the trial Court justified in observing that there has been unexplained inordinate delay in filing the Additional Written Statement ?
and
ii. Whether the impugned order dismissing the Applications filed under Order 8 Rule 9 C.P.C. suffers from any material irregularity warranting
interference ?
The suit property relates to S.No.237/5, 0.03.5 hectares, together with a tiled premises containing Flour Mill and its accessories with 15 H.P.
Motor with Service Connection No. 822. The Plaintiff has originally filed the Suit for permanent injunction; later, three amendment Petitions were
filed to be included in the Plaint, as noted below:-
First Amendment of Plaint was ordered declaring
the minor Plaintiff as major. ... 05-01-1999
Second Amendment of Plaint for the
alternative relief of possession was ordered in
I.A.No. 1299 of 1999. ... 15-10-1999
Third Amendment of Plaint to implead
D.3 was ordered in I.A.No. 509 of 2000 ... 23-11-2000
The First Defendant has filed the Written Statement contending that the Plaintiff is not in possession of the suit property and that the First
Defendant''s wife is in possession of the suit property. In the earlier Written Statement filed by the First Defendant, he has referred to the family
arrangement between Perumal Reddy and Balasubramania Reddy on 12-07-1981. Pursuant to the said family arrangement, it is alleged that
Balasubramania Reddy was put in possession of the suit property and that the First Defendant''s wife is the adopted daughter of late
Balasubramania Reddy. According to the First Defendant, the Testator Perumal Reddy, has no power to bequeath the suit property to the Plaintiff
by executing the Will.
In the Additional Written Statement filed in 2002, the Defendants have put forth new set of facts and pleadings interalia contending that:-
Balasubramania Reddy deposited Rs. 10,000/- in State Bank of India, Thiruthani and that the relative of Balasubramania Reddy, namely,
Radhakrishnan, gave permission to the Assistant Estate Duty Officer to adjust Rs. 10,000/- deposited by late Balasubramania Reddy. Regarding
this, the Third Defendant, is said to have filed the suit in O.S.No. 755 of 1989. In the said Suit, the Plaintiff''s Father Natarajan and his wife filed an
Application in I.A.No. 2525 of 1989 to implead them as the Legal Representatives of late Balasubramania Reddy. That Application was dismissed
by the Court.
All the original School and College Certificates of Third Defendant is with the Plaintiff''s Father Natarajan. Third Defendant is the owner of the suit
property.
The Perumal Reddy had accepted the Family Settlement dated 12-07-1981 for obtaining the Income Tax Clearance Certificate. Perumal Reddy
had given an affidavit stating that he acquired the property through 1981 Family Settlement and that document is available in the Sub-Registrar
Officer, Uthukkottai.
The Rice Mill, which was in the name of Balasubramania Reddy, was given to Perumal Reddy. In that Rice Mill, the Plaintiff''s Father has been
running an Industrial Technical Institute (ITI), which was in the name of Perumal Reddy was also given to Balasubramania Reddy. The First
Defendant''s wife being the adopted daughter of Balasubramania Reddy inherited the same. On 15-06-1982, Perumal Reddy gave consent letter in
favour of the Third Defendant to run the Flour Mill.
By a careful reading of the Additional Written Statement, it is clear that the Third Defendant has put forth a new set of facts and new defence by
introducing a new case. In the supporting affidavit, no convincing reason has been stated for not putting forth the above facts and defence in the
earlier Written Statement. In the affidavit, the First Defendant has alleged that those facts have been omitted to be pleaded. It is relevant to note
that the First Defendant is not an illiterate, but a practising Advocate. He cannot be allowed to take shelter that it has been omitted to be
mentioned. In the absence of convincing reasons for receiving the Additional Written Statement, at the stage of trial the Additional Written
Statement cannot be entertained. In Nanjan Vs. Selai and Others, , it is 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"".
Referring to that Judgment in 2000 I L.W. 821 (Poongavanam Ammal v. Navaneetham Ammal), Justice S.S. Subramani, has held thus:-
It is true that defendant may be in a position to take inconsistent stand. But that is not the question that has to be decided in this case. Under
Order 8, Rule 9 of Code of Civil Procedure, no pleadings after written statement filed can be received except with the leave of the Court.
Naturally, when leave is sought for, petitioner will have to explain why the present contention was not raised on the earlier occasion. Pleadings
cannot be filed piecemeal. Even if inconsistent stand could be taken, that does not follow that defendant can file written statement at any time as he
chooses and even without showing sufficient cause.
Holding that, there is no acceptable reasons as to why the Defendants failed to raise such a plea in the earlier Written Statement, Justice
M.Karpagavinayagam, has confirmed the order of the trial Court, dismissing the Application in filing the Additional Written Statement, in the
decision reported in 2002 4 L.W. 285 (Kolandasamy v.Rathinam @ Rathinayal). In the said decision, it is held thus:-
...
It is settled law that the Defendant cannot insist that Court must receive additional written statement as of right. The above rule requires
permission 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 such a plea in the original written
statement and the reason for the failure also must be acceptable.
Only in that context, the Court has to exercise its discretionary powers in taking decision as to whether additional written statement has to be
accepted or not. 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. While exercising discretion, the Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how
fact the opposite party will be put to hardship, etc....
For appreciation of the points urged certain dates are relevant to be noted:-
Suit in O.S.No.212 of 1989 was filed on ... 29-03-1989
Written Statement of D.1 was filed on ... 28-11-1991
Written Statement of D.3 was filed on ... 14-12-2001
I.A.No.1299 of 1999 - Amendment of
Plaint for alternative relief of possession
was ordered on ... 15-10-1999
Third Amendment of Plaint to implead
D.3 was ordered in I.A.No.509 of 2000 on ... 23-11-2000
Trial commenced on ... March 2002
The evidence of P.W. 1 was closed on ... 05-03-2002
The evidence of P.W.2 was closed on ... 18-04-2002
Application filed under Order 8 Rule 9 C.P.C. for
receiving Additional Written Statement on ... 26-04-2002
The object of the law of pleadings is that the Court and the respective parties, should fully know of the case before the parties go in for trial, so
that, the trial may proceed in that well defined channel. Now, by putting forth new set of facts, after the Plaintiff''s evidence is closed, the
Defendants are only attempting to divert the process of trial. If the Application is allowed, there would be no remedy to the Plaintiff to adduce
proper evidence, thereby, meeting the defence plea set forth. At this stage, when P.Ws.1 and 2''s evidence is closed, if fresh proceedings are
allowed to take place/received, Plaintiff will be put to great hardship. Allowing of the Application and receiving the Additional Written Statement
would only compel the parties to undergo fresh trial, which cannot be permitted.
The object of pleadings and subsequent pleadings is to enable the other party to know before the trial as to what is the case of the Defendants
which they are called upon to meet and contest. Once P.Ws. 1 and 2 have been examined and the Plaintiff''s evidence has been closed, the
Defendants are not justified in filing such an Application to receive Additional Written Statement putting forth new set of facts. Even in the Written
Statement, it is alleged that the First Defendant is a practising Advocate and it is not as if, he is an illiterate. When that being so, he would not have
omitted to state those facts in the Written Statement. Considering the stage of the litigation and the circumstances of the case, there is no justifiable
reason to receive the Additional Written Statement.
Assailing the impugned order, the learned counsel for the Revision Petitioners has contended that when the Plaint was amended for the relief of
possession and for impleading the Third Defendant, sufficient opportunity must be afforded to the Defendants to file the Additional Written
Statement. This contention does not merit acceptance. The second amendment of Plaint for the alternative relief of possession was ordered in
I.A.No.1299 of 1999 on 15-10-1999. The third amendment of Plaint to implead Third Defendant was ordered in I.A.No. 509 of 2000 on 23-
11-2000. The Application under Order 8 Rule 9 C.P.C. was filed on 26-4-2002, after the Plaintiff''s evidence has been completed. It is also
relevant to note that the Additional Written Statement is not merely confined to the amendment of the Plaint, but puts forth new set of facts. In
2000) II M.L.J. 304 (M.Palaniyappan v. Nachimuthu and Anr.), it is held thus:
Law is well settled that after filing of written statement by the defendant, the additional written statement that may be filed by defendant after the
amendment of the plaint should be confined and limited to the amended portion of the plaint only. He cannot put forward pleas which are not in
answer to the fresh matter introduced by the amendment of plaint and be inconsistent with the pleas previously put forward. A defendant also
cannot ignore his earlier written statement while filing written statement to amended plaint. He has a right to have his say only with respect to the
matter introduced by amendment and no more.
The Additional Written Statement filed by the Defendants is not confined to the Amended Plaint and hence, the contention advanced on behalf of
the Revision Petitioners does not merit acceptance.
No convincing reasons are stated in the affidavit to receive the Additional Written Statement. Allowing the Application under Order 8 Rule 9
C.P.C. to permit the parties to file the subsequent pleadings is purely the discretion of the Court. While exercising the discretion, the lower Court
has rightly taken note of the stage of the litigation, the delay that has occasioned and the hardship to which the Plaintiff would be subjected to. The
impugned order does not suffer from any material irregularity warranting interference. These Revision Petitions have no merit and the same are
bound to fail.
For the foregoing reasons, the common order of the District Munsif, Tiruvallur, made in I.A.Nos. 631 and 630 of 2002 in O.S.No. 212 of
1989, dated 09-10-2002, is confirmed and these Revision Petitions are dismissed. Consequently, the connected C.M.P.No. 18998 of 2003 in
C.R.P.No. 2525 of 2003, is also dismissed. In the circumstances of the case, there is no order as to costs. The learned District Munsif,
Thiruvallur, is directed to dispose of the suit in O.S.No. 212 of 1989 expeditiously, in accordance with law.