Telangana High Court
Smt. Shahzadi Begum vs Syed Quamruddin on 29 November, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.872 OF 2019
ORDER:
Aggrieved by the order dated 22.01.2019 in I.A.No.1274 of 2018 in O.S.No.1307 of 2013 (hereinafter will be referred as 'impugned order') on the file of learned VIII Additional District Judge, Ranga Reddy District, the plaintiff has filed the present Civil Revision Petition.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned VIII Additional District Judge, Ranga Reddy District.
3. The brief facts of the case as can be seen from the record available before this Court are that the plaintiff has filed suit vide O.S.No.1307 of 2013 for partition against defendant Nos.1 to 12 in respect of suit schedule 'A' to 'C" properties on the death of her parents. Defendant No.1, who is the brother of the plaintiff, filed a written statement on 24.03.2014 denying the claim of the plaintiff alleging that during the life time of plaintiff's parents, the share of the plaintiff was settled by her father by way of gift and silver articles from time to time, as such the plaintiff has no claim in the schedule of properties. During the pendency of the suit, defendant No.1 filed 2 MGP,J CRP_872_2019 I.A.No.1274 of 2018 in O.S.No.1307 of 2013 seeking leave of the court to file an additional written statement on behalf of the defendant No.1 for proper adjudication of the case. It was alleged in the affidavit filed in support of the petition in I.A.No.1274 of 2018 that he could not instruct his earlier counsel with reference to pleadings, as such he may be permitted to file additional written statement. A counter was filed by the plaintiff to the petition in I.A.No.1274 of 2018 denying the averments of the petition and mainly contended that no reason was assigned by the defendant No.1 as to on which grounds he is intending to file additional written statement. It was further contended by the plaintiff that issues have been framed on 08.03.2016 and evidence was adduced before the Court on 13.03.2017, as such no leave can be granted to file additional written statement, when evidence was already adduced. The trial Court has permitted the defendant No.1 to file additional written statement vide impugned order dated 22.01.2019. Aggrieved by the same, the plaintiff has filed the present Civil Revision Petition to set aside the impugned order.
4. Heard both sides and perused the record.
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5. It is the contention of the learned counsel for the revision petitioner/plaintiff that after framing of issues and after filing of the chief examination affidavit of plaintiff, permitting the defendant to file additional written statement cannot be entertained, more particularly, when the rights of the plaintiff are effected by such permission to defendant to file additional written statement.
6. The suit was filed in the year 2013 and the written statement was filed by the defendant No.1 in the year 2014 and after four years of filing written statement i.e., in the year 2018 the petition was filed by the defendant seeking permission to file additional written statement.
7. It is further contended that the defendant No.1 in the additional written statement pleaded that his parents gifted the schedule of properties to him in the presence of witnesses, however, there is no such pleading in the earlier written statement. Thus, the defendant No.1 has introduced new facts by way of additional written statement. In the earlier written statement defendant No.1 pleaded that the share of the plaintiff was given during the life time of their parents and thereby the plaintiff has no share in the suit schedule property. But in the additional written statement the defendant No.1 improvised the 4 MGP,J CRP_872_2019 case by pleading that the suit schedule 'A', 'B' and 'C' properties are constructed with considerable share of savings of defendant No.1 and they were orally gifted to him by his parents.
8. Learned counsel for the revision petitioner/plaintiff relied upon a decision in P.A.Jayalakshmi v. H. Saradha and others 1, wherein it was held by the Apex Court as under:
"11. For reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI Rule 17 of the Code of Civil Procedure. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII Rule 9 of the Code of Civil Procedure. At no point of time, a contention was raised that she wanted to amend her pleadings.
12. Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. We may notice that one of the plaintiffs was examined on 1.3.2007. It is accepted at the bar that despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved."
9. Learned counsel for the revision petitioner/plaintiff relied upon a decision rendered by the Madras High Court in Devanbu v. Sundara Raj and others 2, wherein it was observed that though when the defendants filed written statement, the plea of res judicata was available to them, but they failed to take such a stand in the written statement, therefore, such plea is deemed to have been waived. In reply, learned counsel for the respondent/defendant relied upon a decision rendered by the 1 (2009) 14 Supreme Court Cases 525 2 MANU/TN/0116/2005 5 MGP,J CRP_872_2019 Madras High Court in Muthusamy v. Thangaraj 3, wherein it was observed as under:
"11. The learned Counsel for the revision petitioner, to deny the additional written statement, sought support from the decision of this Court in Devanbu v. Sundara Raj and Ors., , wherein this Court has taken a view that subsequent pleadings cannot be entertained, when the defendant had an opportunity to raise the plea in the original written statement itself, i.e. when a plea was available to the party and when it has not been raised, it is not open to the party to raise it by way of additional written statement. In the said case, it appears, plea of res judicata, which was available to the defendant on the date of filing of the written statement, was not raised, when it was sought to be raised, this Court has observed, such plea is deemed to have been waived. Here, this kind of situation is not available. In the affidavit, it is said, later verification of the revenue records reveals that the plaintiffs family is not entitled to the property or something like that and it cannot be said that the same was known to the defendant to raise in the original written statement. Therefore, in my considered opinion, the above ruling is distinguishable on facts, considering the reasons as said by me, supra also.
12. In Murthi Gounder v. Karuppanna Gounder, AIR 1976 Mad. 302, this Court has taken a view, permission sought after examination of witnesses by defendant to file additional written statement is not maintainable. From a reading of the above judgment, it is seen, in the original written statement, the defendant claimed that the road, which was in dispute, was laid only 5 months before, whereas in the additional written statement, an attempt is made to make out a case of easementary right of pathway extending over 12 years on the basis of the information acquired from the Panchayat record, thereby causing prejudice to the other side. Considering the factual situation, rejection of additional written statement by the Court was upheld and the same principle cannot be extended in this case, since evidence has to be recorded only hereafter, except P.W.1 was examined in part.
13. For the foregoing reasons, I conclude, there is no error in the order of the trial Court in allowing the petition to receive the additional written statement, warranting my interference under Article 227 of the Constitution of India, in view of the further fact, the parties are having a chance to agitate the same before the trial Court, thereby showing alternative remedy is also available, in which case, invoking Article 227 is not desirable."
10. It is observed that the facts in Devanbu's case (supra) are pertaining to plea of res-judicata, which was not taken at initial 3 2005 (4) R.C.R.(Civil) 569 6 MGP,J CRP_872_2019 stage and whereas in the case on hand, there is no such instance. Therefore, the facts of the case in Devanbu's case (supra) cannot be made applicable to the facts of the case.
11. Learned counsel for the revision petitioner/plaintiff relied upon a decision in S. Malla Reddy v. Future Builders Cooperative Housing Society and others 4, wherein the Apex Court observed as under:
"24. Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant- appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant- appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable."
4 (2013) 9 Supreme Court Cases 349 7 MGP,J CRP_872_2019
12. On the other hand, the learned counsel for the respondent/defendant further relied upon a decision in Pandit Iswardas v. State of Madhya Pradesh and others 5 wherein the Apex Court observed that there is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. learned counsel for the respondent/defendant relied upon a decision in B.K. Narayana Pillai v. Parameswaran Pillai and another 6, wherein the Apex Court observed that amendment shall be permitted if such amendment result in solution of real controversy between the parties without altering the cause of action and that as prejudice less likely to arise in case of amendment of written statement, the Courts shall be more liberal in permitting such amendments. Even as per the decision relied upon by the respondent/defendant in B.K.Narayana Pillai case (supra), the approach of the Court shall be liberal in amendment of written statement, particularly when any prejudice suffered by the other side can be compensated by costs. But in the case on hand, the prejudice that is apprehended by the plaintiff cannot be compensated by costs, as the permission sought by the defendant to file additional written statement, will have serious impact on the case of the plaintiff. Though, it is settled law that 5 (1979) 4 Supreme Court Cases 163 6 (2000) 1 Supreme Court Cases 712 8 MGP,J CRP_872_2019 defendants can raise alternative plea in the additional written statement, such alternative plea shall not be destructive of the original plea taken in the written statement. In Ram Niranjan Kajari v. Sheo Prakash Kajaria 7 the Apex Court held as under:
"12. In our view, having considered the averments made in the application for amendment of the written statement, it cannot be said that in fact neither any admission was made by the appellant in his original written statement nor had the appellant sought to withdraw such admission made by him in his written statement. That apart, after a careful reading of the application for amendment of the written statement, we are of the view that the appellant seeks to only elaborate and clarify the earlier inadvertence and confusion made in his written statement. Even assuming that there was admission made by the appellant in his original written statement, then also, such admission can be explained by amendment of his written statement even by taking inconsistent pleas or substituting or altering his defence." The learned Counsel appearing for the appellant mainly referred to three Judgments of this Court. In Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co.[3], it was held as follows at Paragraph-10: "10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court." In Gautam Sarup v. Leela Jetly and others[4], after considering Panchdeo Narain Srivastava (supra) and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. (supra) and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at Paragraph-28 as follows:
"28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." On amendments generally, in the decision reported in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others[5], after referring to Gautam 7 (2015) 10 SCC
9 MGP,J CRP_872_2019 Sarup (supra), the principles on amendment have been summarized at Paragraph-63. It has been held as follows:
"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."
13. In the case on hand, the case before the trial Court is not at the stage of pre-trial and in fact, necessary issues were framed and plaintiff has submitted her chief-examination as PW1 and at that stage the defendant No.1 has approached the Court seeking permission to file additional written statement. As rightly contended by the learned counsel for plaintiff, the citations relied upon by the trial Court while passing the impugned order are with regard to permission granted to the plaintiff for filing rejoinder but not related to the permission granted to defendant No.1 to file additional written statement.
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14. In Gurudial Singh and others V. Raj Kumar Aneja and others 8, the Apex Court held as under:
"Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."
15. In view of the principle laid down above, it is clear that amendment of pleadings shall not be misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court, more particularly, when necessary issues were already framed and plaintiff has filed her chief examination affidavit as PW1.
16. It is pertinent to note that the only reason assigned by the defendant No.1 for seeking permission to file additional written statement is that he is born deaf and dumb and he could not instruct his counsel properly with total pleadings. It is observed that defendant No.1 is working in Medak Artillery Factory for Defence under Central Government. It is not the case of the defendant No.1 that he is an illiterate. It is not even the case 8 (2002) 2 SCC 445 11 MGP,J CRP_872_2019 of the defendant No.1 that he is blind and that he could not read the averments of the written statement as prepared by his counsel. As seen from the written statement, the defendant No.1 has subscribed his signature verifying that the facts mentioned in the written statement are true and correct to the best of his knowledge. Thus, it indicates that the defendant No.1 has subscribed his signature by only after understanding the averments as stated in the written statement. In such circumstances, he cannot contend that he could not instruct his counsel properly about the total pleadings. Therefore, in view of the facts and circumstances of the case, the reason assigned by the defendant No.1 is appearing to be not genuine.
17. In view of the above discussion, this Court is of the considered opinion that the learned trial Court judge ought not to have accorded permission to defendant No.1 to file additional written statement, more particularly when the averments in the additional written statement are destructive of the original plea taken in the written statement and also the pleadings of the plaintiff i.e., mutually destructive of each other and more specifically when the petition under Order VIII Rule 9 of the CPC is filed after commencement of trial. The power under Order VIII Rule 9 of the CPC is to be used only in exceptional cases 12 MGP,J CRP_872_2019 and for reasons recorded in writing and cannot be exercised by the defendant as a matter of right. No plausible explanation is offered by the defendant No.1 as to why he filed such additional written statement after four years from the date of filing written statement. Therefore, the impugned order is liable to be set aside.
18. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned order dated 22.01.2019 in I.A.No.1274 of 2018 in O.S.No.1307 of 2013 on the file of learned VIII Additional District Judge, Ranga Reddy District and thereby, the petition in I.A.No.1274 of 2018 in O.S.No.1307 of 2013 is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 29.11.2023 AS