ORDER
S. Ashok Kumar, J.
1. CRP. No. 1142 of 2004 has been filed against the fair and final order dated 5.12.2003 made in I.A. No. 1272 of 2003 in O.S. No. 262 of 1996 on the file of the District Munsif Court, Tiruchengode whereby the learned Trial Judge rejected the I.A., filed by the defendants to receive additional evidence.
2. CRP.No:115 of 2006 has been filed against the fair and final order dated 24.8.2005 made in I.A. No. 1106 of 2005 in O.S. No. 262 of 1996 on the file of the District Munsif Court, Tiruchengode, whereby the learned Trial Judge has ordered to struck off the I.A., filed by the plaintiffs to implead the LR.s of the deceased first plaintiff as all the proceedings in the suit has been stayed by the High Court in the earlier CRP and the said I.A., has been mistakenly numbered by the trial court.
3. As regards the first CRP, the defendants filed the said I.A., to receive the Additional Written Statement to put forth the fact which are in the realm of relevant facts and not the facts in issue and it is filed only to obviate a possible objection from the plaintiffs side that the fact which the defendants have put forth in the additional written statement has not been specifically pleaded. According to the defendants when P.W.1 was cross examined by the defendants’ counsel, a question was put to him about the joint ownership of the suit property by the plaintiffs’ predecessors. Since the said question was objected to by the plaintiff’s counsel the same was not recorded and on the memo filed by the defendants’ counsel, the same was dismissed on 27.10.2003. Hence only to fill up the lacuna created by them, the defendants intend to file the additional written statement only to obviate the possible objection from the plaintiffs which they did not plead specifically in the written statement. According to the defendants additional written statement can be received at any stage.
4. The learned Trial Judge on a consideration of the averments of the parties and the submissions made by the respective counsels, dismissed the said I.A., holding that the defendants did not raise such a ground in the additional written statement already filed by them, the defendants intend to file the additional written statement only to obviate the possible objection from the plaintiffs which they did not plead specifically in the written statement and moreover the facts raised n the additional written statement re not new facts which came into existence now. Further, the suit is in the part heard stage viz., the cross examination of PW1 is over and at this belated stage, no additional written statement can be received. Aggrieved over the same, the CRP.No:1142 of 2004 has been filed by the defendants.
5. Mr. N. Manokaran, learned Counsel appearing for the revision petitioners/defendants relied on the decision of this Court in Subramanian and three others v. Jayaraman, , wherein a learned Judge o this Court held that approach of the trial court in granting leave to file additional pleadings should be positive and no absolute bar or impediment in allowing any additional written statement an the discretion of the court is to be exercised liberally. The learned Judge further held that the trial court should take a lenient view in granting leave and put parties on terms and only in case when the defendants introduce entirely different case in additional written statement so as to prejudice the other side, leave can be denied and fair trial affording adequate opportunities to both parties require the grant of leave for filing additional written statement.
6. In the judgement in Baldev Singh and Ors. Etc. v. Manohar Singh and Anr. Etc., reported in 2006 (5) Supreme 943 Their Lordships of the Apex Court while dealing with a similar case have held the courts should be extremely liberal in granting prayer for amendment unless serious injustice or irreparable loss is caused to the other side. Wide power and unfettered discretion has been conferred on court to allow amendment of pleading in such manner and on such terms as it appears to the court just and proper. In that context it has been held as follows:
…That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. 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 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. That being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint.
6. In the above decision the ground of limitation was raised and Their Lordships have further held that plea of limitation can be raised to be allowed by the plaintiff as an additional defence while framing the issue. In the above decision, the Apex Court has has gone to the extent in saying that the defendants can raise even inconsistent pleas while making amendments to the written statement if the case so warrants, which cannot be done in the case of a Plaint. As far as the present case is concerned already there is an admission of joint ownership of the plaintiffs’ predecessors by the defendants. The defendants only to sought to fill up the lacuna of the said fact by specifically making a plea and that is intended only to obviate the possible objection from the plaintiffs’ side. In this case is already the cross examination of PW.1 is over. Therefore, the only option for the defendants is to file the additional written statement and hence I am of the view that the defendants can be permitted to file additional written statement by making specific plea as to the joint ownership of the predecessors of the plaintiffs and the defendants. In these circumstances, the CRP.No.1142 of 2004 is allowed and the order of the learned Trial Judge dismissing the I.A. No 1272 of 2003 in O.S. No. 262 of 1996 is set aside. Consequently, connected CMP is closed.
7. As regards the second CRP, viz., CRP. No. 115 of 2006 which has been filed against the fair and final order dated 24.8.2005 made in I.A. No. 1106 of 2005 in O.S. No. 262 of 1996 whereby the learned Trial Judge has ordered to struck off the I.A., filed by the plaintiffs to implead the LR.s of the deceased first plaintiff as all further proceedings in the suit has been stayed by the High Court in the earlier CRP and the said I.A., has been mistakenly numbered by the trial court, since the earlier CRP. No. 1142 of 2004 has been disposed of today, there is no impediment for the Trial Court now to take on file and dispose of the said I.A., on merits and according to law since according to the plaintiffs, the proposed parties are only the mother and wife of the deceased first plaintiff. Therefore, this CRP is also allowed by setting aside the order passed in I.A. No. 1106 of 2005 and a direction is issued to restore the said I.A., to its file and dispose of the same on merits and according to law. Consequently, connected CMPs are closed.
8. In the result, both the CRPs are allowed. All the connected Miscellaneous Petitions are closed. No costs.