IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.10.2008
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.PD.No.3257 OF 2008
and
M.P.No.1 of 2008
1. Neelambal
2. Krishnaveni
3. Senthamizhselvi
4. Rathinambal ... Petitioners
Vs
1. The District Collector
District Collector Office
Perundurai Road
Erode-11
Erode District
2. The Land Reforms Officer,
Land Reforms Office,
Near Ashoka Lodge
Erode Town
Erode District
3. The Tahsildar
Taluk Office
Dharapuram Town,
Dharapuram Taluk
Erode District
4. Meganathan ... Respondents
This Civil Revision Petition filed against the order dated 16.2.2008 made in I.A.No.161 of 2008 in O.S.No.454 of 2004 on the file of the District Munsif Court, Dharapuram.
For Petitioners : Mr.D.Krishnakumar
O R D E R
The civil revision petitioners/plaintiffs have filed this civil revision petition (C.R.P(PD) No. 3257 of 2008), aggrieved against the orders passed in I.A.No.161 of 2008 in O.S.No.454 of 2004 dated 16.2.2008 by the District Munsif Court, Dharapuram in allowing the application filed under Order 8 Rule 9 of CPC.
2. The revision petitioners are the plaintiffs in the suit in O.S.No.454 of 2004 before the trial Court which has been filed for declaration that the suit properties belonged to the plaintiffs and for permanent injunction restraining the defendants, their men, agents etc from in any manner interfering with the suit properties.
3. The third defendant has filed a written statement and the same has been adopted by the defendants 1 and 2. However, the second defendant has also filed additional written statement before the trial Court. In the suit, on the side of plaintiffs, P.Ws 1 and 2 were examined and the plaintiffs’ side evidence was closed.
4. The learned counsel appearing for the revision petitioners informs this Court that D.W1 was examined in full and the matter is posted for further examination of Defendants’ witness before the trial Court. At that juncture, respondents 1 to 4/defendants 1 to 4 have projected I.A.No.161 of 2008 before the trial Court praying permission to receive the additional written statement. A perusal of affidavit in I.A.No.161 of 2008 shows that the affidavit has been sworn to by the learned counsel,who has entered appearance on behalf of the petitioners/defendants.
5. In this connection, it is quite opt to point out that the Order 8 Rule 9 CPC enjoins that the first part enacts a ban on projecting of subsequent pleadings, after the filing of the written statement. However, this ban is not applicable to the pleadings which are by way of defence to set-off or counter claim. But certainly with the leave of the Court, subsequent pleading can be filed. But under the second part, the Court at any time may require written statement or additional written statement. The employment of words ‘any of the parties’ indicates that the rule is applicable to the plaintiff as well as the defendant because in a counter claim, the status of the plaintiff is that of a defendant. But second part of the rule does not confer any right on a party to file written statement or additional written statement. But he can do so only on being ‘required’ by the Court to
do so. Indeed, the additional written statement should not set up a totally new case or project facts at direct variance with the original written statement so as to completely change the nature and character of the case, in the considered opinion of this Court. In an extraordinary cases, Order 8 Rule 9 CPC gives the Court judicial discretion to permit the defendant to file written statement within a span of 30 days for the reasons to be recorded in writing. But in regard to the filing of additional written statement is concerned, Order 8 Rule 9 CPC gives ample power to the Court to grant leave to file additional written statement and it does not prescribe restriction as to what defence has to be taken. It is true that in additional written statement, the Court will not allow the inconsistent pleas. In the instant case, affidavit for reception of additional written statement on the side of the defendants before the trial Court has been sworn to by the counsel and not by the parties. In this connection, it is not out of place to point out that Order 8 Rule 1 of CPC refers to the filing of the written statement by the defendants. Therefore, as a logical corollary, this Court comes to the conclusion that the affidavit in I.A.No.161 of 2008 must be actually sworn to and filed by the party to the litigation before a Court of law and not by the counsel on record who cannot take the role of a client and in that view of the matter, without going into the merits and demerits of the Court, this Court allows the civil revision petition in the interest of justice.
6. In fine,this civil revision petition is allowed and the order passed in I.A.No.161 of 2008 in O.S.No.454 of 2004 on the file of District Munsif, Dharapuram is hereby set aside. The respondents 1 to 4/defendants 1 to 4 are to file an appropriate application before the trial Court for reception of additional written statement, if so advised, in the manner known to law and in the event of such application being filed, the trial Court is directed to deal with the matter on merits and pass appropriate orders in accordance with law at an early date. The parties are directed to bear their own costs. Consequently, connected M.P.No.1 of 2008 is closed.
21.10.2008
Index:Yes
Internet:Yes
sg
To
The District Munsif Court, Dharapuram
M.VENUGOPAL,J
sg
C.R.P.PD.No.3257 of 2008
21.10.2008