Ponnuchamy, Chandrasekaran, Kesavan and Dhanabal vs N. Singaravelu

S. Nagamuthu, J.—The petitioners who are the defendants in O.S. No. 127 of 2004, on the file of the learned rincipal District Munsif,

Valangaiman, Kumbakonam, have come forward with this revision challenging the order dated 06.04.2005 made in I.A. No. 111 of 2005. The

respondent is the plaintiff.

The respondent has filed the above suit for declaration of title and for recovery of possession of the suit property and also for mean profits. The

first defendant in his written statement has disputed the title of the plaintiff and he has stated that the suit property was purchased by him by means

of a registered sale deed dated 06.02.1985 and by virtue of the said sale deed, he became the owner of the same and on that basis, he has been in

possession and enjoyment of the suit property.

During the trial of the case, the defendants have filed I.A. No. 127 of 2004, requesting the Court to receive additional written statement. The

said I.A., was resisted by the respondent and finally, it was dismissed by the learned Principal District Munsif. Challenging the said order, this

revision has been filed.

The lower Court has dismissed the said application on the ground that in the additional written statement, an inconsistent plea has been taken

which cannot be permitted at all. The lower Court has further stated that, in the original written statement, the first defendant has pleaded that he

has been all along in possession of the property right from the year 1985 as absolute owner by virtue of the said sale deed, whereas, in the

additional written statement, it has been stated that he has perfected his title by adverse possession, which according to the lower Court is not

permissible. The lower Court has expressed that since, the trial is at the stage of examination of the defendants side witnesses, if the additional

written statement is allowed to be received, then, it would not be possible for the plaintiff to rebut the allegations made in the additional written

statement by letting sufficient evidence.

The learned Counsel for the petitioners would contend that while deciding the question whether to receive the additional written statement or

not, it is not open for the Court to go into the merits of the additional written statement and to give a finding on the same. He would further contend

that being the defendants, the petitioners can take such in-consistent pleas by filing additional written statement which is permissible under law. He

would further submit that, in the judgment of the Hon''ble Supreme Court reported in 2006 (5) Supreme 943 Baldev Singh and Ors. etc. v.

Manohar Singh and Anr. etc. the Hon''ble Supreme Court has held that the Courts should be liberal in receiving the additional written statement

with a view to avoid multiplicity of proceedings and to render complete justice to the parties.

Per contra, the learned Counsel for the respondent would submit that the first defendants is not entitled to contend that he has perfected his title

by means of adverse possession having stated that he has been in possession in the capacity of the owner of the property from the year 1985 on

wards and on the basis of the sale deed and therefore, the additional written statement should not be received in evidence.

I have considered the rival contentions.

While approaching the issues involved in this case, the principles laid down by the Hon''ble Supreme Court in the Judgment reported in 2006 (5)

Supreme 943 (cited supra), is to be remembered wherein, the Hon''ble Supreme Court has stated that, unless serious injustice or irreparable loss is

caused to the other side, the Court should be very liberal in allowing the amendment of pleading in such manner and on such terms as it appears to

the Court just and proper. The Hon''ble Supreme Court has further held that adding a new ground of defence or substituting or altering a defence

does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written

statement, the Courts are inclined to be more liberal in allowing the amendment of the written statement than of plaint and question of prejudice is

less likely to operate with same rigour in the former than in the later case. Keeping the above principles laid down by the Hon''ble Supreme Court,

I am of the considered view that the additional written statement which is sought to be filed to add a new defence in the present case, would not be

prejudicial to the plaintiff.

The learned Counsel for the petitioners would rely on the Judgment of this Court reported in 2004 (4) L.W. 699 Shanmugam v. Vijayarangam

and Anr. wherein, this Court has held that the trial Court is expected only to consider the bona fide in filing the petition and the Courts are

expected to not to go to the extent of discussing the merit of the additional written statement filed by the defendant at that stage itself. The learned

Judge, in the said Judgment has held that, it would be improper on the part of the trial Judge to go into the merits of the additional written

statement. In the case on hand, the learned Principal District Munsif, has gone into the merits of the defence taken in the additional written

statement which in my view also is improper.

The learned Counsel for the petitioners would further rely on the Judgment of this Court reported in Subramanian and three others Vs.

Jayaraman, wherein, it has been held that subsequent pleadings by defendant even though contradictory to the original written statement, could be

taken in the form of additional written statement.

Though in the case on hand, as rightly pointed out by the learned Counsel for the respondent, an inconsistent plea has been taken in the

additional written statement, that cannot be a ground to refuse the filing of the additional written statement. The argument of the learned Counsel for

the respondent that the first defendant cannot be permitted under law to contend that he has perfected his title by means of adverse possession in

view of his earlier pleadings that he was in continuous possession as absolute owner, cannot be considered at this stage while deciding the question

of receiving the additional written statement. It is a valid question to be raised at the appropriate stage of the trial and it is for the trial Court to

decide whether the first defendant has perfected his title by adverse possession or not as requested under law.

The one another ground on which the lower Court has dismissed the said application is that, the plaintiff could be prejudiced if the additional

written statement is received at that stage since already the plaintiff has given evidence and also completed evidence on his part and he may not

have a chance to rebut and to lead evidence with reference to the stand taken in the additional written statement. It may be true that the plaintiff

would be deprived of leading any evidence in respect of the additional written statement. But, on that ground alone, the additional written statement

cannot be refused to be received. At the same time, the interest of the plaintiff also is to be protected by affording sufficient opportunity to him to

lead further evidence on his part in respect of the stand taken in the additional written statement.

For all these factual and legal positions, I am of the considered view that the findings of the lower Court is not sustainable under law and the

order of the lower Court is liable to be set aside.

In the result, the order passed by the learned Principal District Munsif, Valangaiman, Kumbakonam dated 06.04.2005, made in I.A. No. 111

of 2005 in O.S. No. 127 of 2004, is set aside. I.A. No. 111 of 2005 shall stands allowed. It is made clear that the lower Court shall give liberty to

the respondent to let in further evidence if he so advised in respect of the stand taken in the additional written statement.

With the above direction, the civil revision petition is allowed. No costs. Consequently, connected C.M.P is closed.