Veerammal and Others vs P. Selvi

R.S. Ramanathan, J.—Heard both sides

The defendant in O.S. No. 937 of 2003 are the revision petitioners. The suit O.S. No. 937 of 2003, on the file of the Principal District Judge,

Madurai was filed by the respondent for specific performance of an agreement of sale executed by the defendants/revision petitioners on

02.09.2001.

The case of the respondent/plaintiff in the plaint was that the suit property was purchased by the first defendant viz., the 1st revision petitioner

herein from one Veerammal, under a registered sale dated, dated 27.08.1980 and the defendants 2 to 5 are the children of the 5th defendant. On

02.09.2001, the defendants borrowed a sum of Rs. 12,000/- as earnest money from the plaintiff and agreed to sell the property and treated the

debt of Rs. 12,000/- as earnest money and the balance sale consideration was payable at the time of execution of the sale deed. The plaintiff was

willing to pay the balance amount and was ready to get the sale deed executed, but the defendants evaded and therefore, a notice was sent through

lawyer directing the defendants to execute the sale deed as per the agreement deed and the notices were received by the first defendant, but no

reply was sent. Another notice was sent to all the defendants and they also did not come forward to execute the sale deed and hence, the suit was

filed.

The first defendant denied the borrowal of Rs. 12,000/- on 02.09.2001, execution of agreement on the same date agreeing to sell the property

for Rs. 16,000/- and in paragraph 5, it has been stated the sale agreement is invalid and not maintainable and she also had taken a plea that the

defendants have not entered into any agreement of sale as stated in the plaint and the defendants have not signed in the filed stamp paper of the suit

sale agreement. It is further stated in paragraph ''7'' that there was an oral agreement by which the defendants have agreed to sell the suit property

for a sum of Rs. 1,12,000/- and they have received a sum of Rs. 12,000/- and the sale would have be completed within three months and the

plaintiff did not pay the balance amount of Rs. 1,00,000/- within three months and therefore, as per the oral agreement, the defendant has forfeited

the advance amount and therefore, the plaintiff is not entitled to claim any relief.

After the case was listed for trial and after PW1 was examined in chief and during the cross examination of PW1, the defendants filed I.A. No.

707 of 2006 to receive the additional written statement. In the affidavit filed in support of the petition, it has been stated that the first defendant is

an illiterate and she has given instructions to her Advocate to file the written statement who prepared it in English and asked her to sign and without

knowing the contents of the same, she filed the written statement, which is in English and thereafter, she engaged another Advocate and he also

refused to appear for her and later, she engaged another Advocate and through him, she came to know that in the written statement what she had

told to the first Advocate was not stated properly and therefore, to state the full facts, additional written statement is filed and that may be taken

into the consideration. In the additional written statement, she denied the agreement of sale as stated by the plaintiff and stated that she purchased

3-1/2 Cents under two sale deeds, one is a registered sale deed and another is a unregistered one and she received a sum of Rs. 12,000/- as loan

from the plaintiff as she never agreed to sell the property and her signature was obtained by force by the plaintiff and her relatives in various stamp

papers and when the first defendant threatened to give a police complaint against the plaintiff for having obtained signatures in blank stamp papers,

the plaintiff agreed to pay Rs. 1,00,000/- to the first defendant and requested plaintiff to convey 1/2 cents of lands. The defendants would have

received a sum of Rs. 1,00,000/- as promised by the plaintiff and would have conveyed 1/2 cents of lands or would have returned a sum of Rs.

12,000/- received from the plaintiff, but they cannot execute the sale deed by receiving Rs. 4,000/-

The plaintiff filed a counter stating that the plea taken by the defendants in the additional written statement are not correct and originally written

statement was translated to her in Tamil and thereafter only it was signed by the first defendant and the story now invented by the plaintiff that now

the 3rd Advocate informed her the contents of the original written statement, which did not contain full facts and therefore, to state the full facts,

she wants to file additional written statement cannot be accepted.

The lower Court rejected the application relying upon the judgment of the Honourable Supreme Court reported in 2003(2) LW 395 in the case

of Thirupathi v. Kothai Aachi and 2006 (4) CTC 135 in the case of Kamatchiammal v. Lakshmanan and 2006 (3) CTC 27 in the case of D.

Ramanujam v. R. Panneerselvam holding that as per the above judgments, the defendants are attempting to introduce a new plea, which are

inconsistent to the plea taken by them earlier and if the additional written statement is allowed to be received, that would cause serious prejudice to

the plaintiff and the scope of the suit would also be challenged and the reasons stated by the defendants that she was not aware of the contents of

the original written statement cannot be accepted and as per the judgment of this Court reported in 1976 AIR 302 (Mad.) in the case of

Manachersw v. N.D.S. & W Company, no supplementary written statement can be filed after the evidence of the plaintiff is closed or after hearing

has begun and therefore, in the additional written statement cannot be received.

Mr. Mohan, the learned Counsel appearing for the revision petitioners submitted that as per the judgment reported in Muthusamy Vs.

Thangaraj, , the lower court ought to have given a liberal approach while receiving the additional written statement and the lower court confussed

itself with the amendment of written statement and dismissed the application.

On the other hand, the learned Counsel appearing for the respondent reiterated the judgments relied upon by the lower court and submitted that

as per the judgment of this Honourable Court additional written statement cannot be received after the trial has commenced.

In my opinion, the lower Court without appreciating the difference between the amendment of the written statement and the receipt of the

additional written statement, proceeded on the basis that after the trial has commenced the defendants cannot be permitted to file additional written

statement and that would prejudice the rights of the plaintiffs. In the judgment reported in Muthusamy Vs. Thangaraj, , in the case of Muthusamy v.

Thangaraj, this Court has distinguished the provision under Order 6 Rule 17 and Order 8 Rule 9 CPC and held as follows; ""Order 8 Rule 9 CPC,

does not say that no application for receiving the additional statement shall be allowed, after the trial has commenced, unless the court comes to the

conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial, as provided under Order 6,

Rule 17 CPC, Proviso. The legislators when amended the C.P.C, though it fit not to allow the party to have amendment, as a matter of right, that

too in a case where they had an opportunity to raise the same, that the time of filing the pleadings. But when they come to O8, C.P.C., no such

restriction has been imposed, thereby giving discretion to the Court concerned to allow the subsequent pleadings, for which it is not necessary to

consider whether that defence was available on the date of filing of the original written statement or not. Under O8,Rule 9 CPC, power is given to

the Court to call for the written statement or additional written statement from any party, fixing time, not exceeding 30 days, thereby showing the

provisions of Order 8 Rule 9 CPC, is liberal in its application, giving wide discretion to the court, probably to give a chance to the parties, to

agitate their right even raising subsequent pleas, for which, the court should not be rigid. The courts should exercise their discretion liberally, when it

will not affect the right of the party.

Order 8 Rule 9 CPC, does not say, after commencement of trial, no subsequent pleading shall be entertained by the court, as said in Order 6 Rule

17 CPC Proviso.

Considering all these facts as well as in order give an opportunity to the contesting defendant to raise the plea available, the trial court has allowed

the application to receive the additional written statement, in which the court is unable to see any infirmity warranting any interference.

Further, in this case the defendants did not introduce any new case in the written statement. In the original written statement as well as in the

additional written statement, they denied the execution of the agreement of sale and also admitted that their signature was obtained by force and

they never agreed to execute a sale for consideration of Rs. 16,000/-. As a matter of fact, in the written statement the defendants pleaded the oral

agreement of sale for a consideration of Rs. 1,12,000/- and admitted the receipt of Rs. 12,000/- and agreed to execute the sale deed if the

balance amount was paid within three months and as the amount was not paid, the plaintiff was not entitled to claim the relief. In the additional

written statement also they have not taken a different stand and they admitted the receipt of Rs. 12,000/- and further stated that as per oral

agreement of sale if one lakh is paid, they would receive the same. Therefore, having regard to the facts of the case, the defendants in the written

statement have not taken any inconsistent plea or mutually destructive plea. It is settled law that the defendant is entitled to take inconsistent plea

and in this case they have only explained the stand taken in the original written statement and therefore, no prejudice will be caused to the

respondents.

Further, as held by this Court in the judgment reported in Subramanian and three others Vs. Jayaraman, , in the case of Subramanian v.

Jayaraman, contradictory pleas can be taken in the written statement. Further this Court has held in the judgment reported in 2007 (4) MLJ 1098,

in the case of S. Suresh v. Sivabalakannan and Ors. leave to file the additional written statement can be granted liberally except when the

defendant raises mutually destructive pleas or tries to introduce a new case altogether.

In the judgment reported in 2007 (7) MLJ 444, in the case of Thiyagarajan v. Manivannan, it has been held that when the averments in the

additional written statement are consistent with the original written statement and even there are some in-consistencies in the additional written

statement that does not amount to setting up a new case in the additional written statement and the court should be very liberal in considering

application Order 8 Rule 9 CPC.

The judgments relied upon by the learned Counsel appearing for the respondent deals with the amendment of written statement and that cannot

be applicable to the facts of this case. Therefore, having regard to the facts of the judgments of this Court referred to above, the order of the lower

Court is not correct and is liable to be set aside.

In fine, the order of the lower Court is set aside and this civil petition is allowed. Consequently, connected Miscellaneous Petition is closed. No

costs.