BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/04/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)(MD)No.903 of 2006
and
M.P.(MD)No.1 of 2006
1.Veerammal
2.P.Palamuthu
3.P.Nataraja Pandian
4.P.Latha
5.P.Annakili ... Petitioners/Defendants
vs
P.Selvi ... Respondent/Plaintiff
Prayer
Civil Revision Petitions filed under Article 227 of the
Constitution of India, to set aside the order passed on 11.10.2006 made in
I.A.No.707 of 2006 in O.S.No.937 of 2003, on the file of the Principal District
Munsif, Madurai.
!For Petitioners ... Mr.Mohan
for Mr.G.R.Swaminathan
^For Respondent ... Mr.R.Ganesan
:ORDER
Heard both sides
2.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.
3.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.
4.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.
5.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 . cents of lands. The defendants would have
received a sum of Rs.1,00,000/- as promised by the plaintiff and would have
conveyed . 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/-
6.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.
7.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 vs. Kothai Aachi and 2006(4) CTC 135 in the case of Kamatchiammal vs.
Lakshmanan and 2006(3)CTC 27 in the case of D.Ramanujam vs. 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
vs. 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.
8.Mr.Mohan, the learned counsel appearing for the revision petitioners
submitted that as per the judgment reported in 2005(4) MLJ 119 and 2007(7) MLJ
444, 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.
9.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.
10.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
2005(4) MLJ 119, in the case of Muthusamy vs. Thangaraj, this Court has
distinguished the provision under Order 6 Rule 17 and Order 8 Rule 9 CPC and
held as follows; “O8 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
O6, 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 O8 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.
O8 Rule 9 CPC, does not say, after commencement of trial, no subsequent
pleading shall be entertained by the court, as said in O6 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.”
11.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.
12.Further, as held by this Court in the judgment reported in 1999 (3) CTC
52, in the case of Subramanian vs. 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 vs, Sivabalakannan and others,
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.
13.In the judgment reported in 2007(7)MLJ 444, in the case of Thiyagarajan
vs. 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.
14.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.
15.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.
er