V. Yesudhas vs Thankaiyan

M. Duraiswamy, J.—Aggrieved over the fair and final order passed in I.A. No. 515 of 2013 in O.S. No. 218 of 2008 on the file of the I Additional District Munsif Court, Kuzhithurai, the plaintiff has filed the above Civil Revision Petition.

Heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

The plaintiff filed the suit in O.S. No. 218 of 2008 for specific performance. The defendants filed their written statement and are contesting the suit. Thereafter at the instance of the plaintiff, some of the defendants were impleaded and they also filed their written statement in the suit. Thereafter the plaintiff filed an application in I.A. No. 444 of 2009 to file reply statement which was allowed by the trial Court. The first defendant filed his additional written statement on 17.06.2013 and the newly impleaded 6th defendant filed his written statement on the same day. Thereafter when the suit was included in the list for trial, the plaintiff filed the present application i.e. I.A. No. 515 of 2013 seeking permission of the Court to file replication. The said application was filed on 12.08.2013.

On a perusal of the averments stated in the plaint and the averments stated in the replication sought to be filed by the plaintiff, it is clear that the plaintiff has included so many details in the replication. The replication runs to more pages than the original plaint. The averments stated in the replication are different from the averments stated in the original plaint.

The learned Counsel for the petitioner submitted that in order to counter the averments stated in the additional written statement filed by the first respondent, it is just and proper to allow the plaintiff to file replication. In support of his contentions, the learned Counsel relied upon the following Judgments:

(i) In Kandasamy Gounder Vs. 1. Appavaoo 2. Sengottayan 3. Marayee reported in 2006-2-L.W.483, wherein this Court held that in view of the denial of the plaintiff''s right and title in the suit property, to meeting the defence, perhaps it has become necessary for the plaintiff to file the Reply Statement and under such circumstances, the plaintiff should be permitted to file reply statement.

(ii) In Madurai Pillai and Others Vs. V. Aswathi Reddiar and Others reported in 2013(1) MWN (Civil) 863, wherein this Court held that in the absence of any finding given by the trial court with regard to the reply statement said to be filed by the plaintiff raising new pleadings the order of the trial Court refusing to allow the plaintiff to file replication was set aside. In the said judgment, this Court also found that if it is stated that the pleadings are hardly different then the course open to the plaintiff is to file an amendment to the plaint and in that event, the defendant would get a chance to file written statement to those new pleadings.

In the case on hand, on a perusal of the plaint and replication, it is very clear that the plaintiff not only counter the averments stated in the written statement and the additional written statement, but also added new averments in the plaint which cannot be permitted. It is settled position that the Honourable Apex Court this Court in various judgments held that the amendment of the pleadings cannot be allowed if there is change in cause of action and if the character of the suit is sought to be changed. In these circumstances, the trial Court has rightly rejected the petition. It is also brought to the notice of this Court that the plaintiff has filed an application under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint, which was also dismissed by the trial Court. The learned Counsel for the petitioner submitted that the petitioner has challenged the fair and final order passed in that application also.

In these circumstances, I do not find any error or irregularity in the order passed by the trial Court. Accordingly, the Civil Revision Petition is devoid of merits and the same is dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed. However, there shall be no order as to costs. Since the suit is pending from 2008, I direct the trial Court to dispose of the suit on merit and in accordance with law within a period of four months from the date of receipt of a copy of this order.