R. Vadivel vs R. Thangavelu

M. Duraiswamy, J.—Challenging the fair and final order passed in I.A. No.385 of 2013 in O.S.NO.92 of 2009, on the file of the District Munsif Court, Periyakulam, the defendants have filed the above Civil Revision Petition.

Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.

The plaintiff filed the suit in O.S. No.92 of 2009 for permanent injunction. The defendants filed their written statement on 18.09.2009 and are contesting the suit. When the suit was taken up for trail, the defendants filed an application in I.A. No. 385 of 2013 under Order 8 Rule 9 of the Code of Civil Procedure seeking permission of the trial Court to file additional written statement. In the affidavit filed in support of the application, the defendants have stated that they came to know about the details of the dispute between the parties only recently. Therefore, they could not raise those defences in the original written statement. In these circumstances they sought permission of the trial Court to file additional written statement. The said application was opposed by the plaintiff stating that in the additional written statement, the defendants have raised mutual destructive plea and therefore the same was rightly rejected by the trial Court.

The learned Counsel appearing for the revision petitioners, in support of his contention, relied upon a judgment in Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and Others, , wherein the Honourable Apex Court held as follows:

"5. This application for acceptance of an additional counterstatement was resisted by the respondents alleging that the additional counter-statement containing new and inconsistent plea raised by the appellant at the belated stage, more particularly, after completion of examination of witnesses, could not be allowed as it would cause serious prejudice to the respondents.

In our view, this is also not a ground for which the High Court could interfere with the concurrent orders of the Rent Control Tribunal and reject the application for permission to file additional counter-statement. In our view, even by filing an amendment or additional counter-statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the counter-statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to the plaintiff or displacing him completely. Therefore, we are unable to agree with the High Court on this ground as well."

The learned Counsel appearing for the respondent submitted that since the defendants are taking destructive plea, the application was rightly rejected by the trial Court and in support of his contention, the learned Counsel relied upon a judgment in Papathi and Others Vs. Sakuntala reported in (2009) 1 MLJ 609 wherein this Court held that by way of additional written statement, the defendants cannot be permitted to take away the right accrued to the plaintiff, by raising a mutually destructive plea, which is impermissible in law."

On a careful consideration of materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that the settled position is that as the defendants, they can take inconsistent plea in the written statement. But in the case on hand, though the written statement was filed in the year 2009, the defendants have stated that they came to know about the further details with regard to the dispute between the parties only at the later stage, therefore they could not state those details in the original written statement.

In any event, the averments stated in the additional written statement have to be established and proved by the defendants by acceptable evidence. Merely because the defendants are allowed to file additional written statement raising new pleas will not amount to acceptance of those averments or as proved. The averments stated in the additional written statement have to be proved by the defendants by acceptable evidence. The decision relied upon by the learned Counsel for the revision petitioners squarely applies to the facts and circumstances of the present case.

In these circumstances, the fair and final order passed by the trial Court in I.A. No. 385 of 2013 are set aside and the said application stands allowed on condition that the petitioners paying a sum of Rs.3,000/- (Rupees Three Thousand only) to the respondent as costs. The petitioners should pay the said amount to the Counsel appearing for the respondent in this petition before this Court within a period of one week from today. Since the suit is pending from 2009, I direct the trial Court to dispose of the suit on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. The plaintiff is at liberty to file reply statement to the written statement filed by the defendants.

With these observations, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is allowed. However, there shall be no order as to costs.