Madras High Court
Siluvai Mary vs Devasagayam ... 1St on 8 July, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.07.2021
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.2335 of 2020 &
CMP No.14676 of 2021
1.Siluvai Mary
2.M.Pushparaj
3.Moovarasu
... Petitioners/Petitioners 2 to 4/
Defendants 2 to 4
Vs
1. Devasagayam ... 1st Respondent/Respondent/Plaintiff
2. M.Madalaimuthu
... 2nd Respondent/1st Petitioner/1st
Plaintiff
Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the fair and decretal orders dated 24.11.2020 passed
in I.A.No.2 of 2019 in O.S.No.306 of 2015 on the file of the III
Additional District Judge, Salem.
For Petitioners .. Mr.P.Jagadeesan
For Respondent .. Mr.D.Shivakumaran for R1
Mr.V.Sanjay for R2
ORDER
The second, third and fourth defendants in O.S.No.306 of 2015
now pending on the file of the III Additional District Court, Salem are
https://www.mhc.tn.gov.in/judis/
the revision petitioners herein. They are aggrieved by the order dated
24.11.2020 passed in I.A.No.2 of 2019 which application had been
preferred by them under Order VIII Rule 9 C.P.C. seeking permission to
file additional written statement in the suit.
2. O.S.No.306 of 2015 had been filed by the plaintiff seeking a
declaration that a partition deed dated 10.03.2015 executed among the
defendants is null and void and not binding on the plaintiff in respect of
one of the items of the suit property and for a declaration that the
plaintiff is the absolute owner of further items of the suit property and for
recovery of possession and also for a direction to the defendants to
divide one of the items of the suit property into equal shares and allot
one share to the plaintiff and further consequential reliefs. In effect, it is
a suit on property seeking title over the property. The defendants had
entered appearance and also filed the written statement. Particularly, the
first defendant who is shown as the second respondent in the present
revision had filed the written statement. Thereafter, the fourth defendant,
who is the son of the first defendant filed I.A.No.2 of 2019 under Order
VIII Rule 9 of C.P.C. seeking permission to file additional written
statement.
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3.Mr.D.Shivakumaran, learned counsel for the first
respondent/plaintiff pointed out the inconsistencies among the plea
raised by the defendants themselves. The learned counsel pointed out
that it was the first defendant who had filed the written statement
originally and the other defendants had adopted the same. Subsequently,
the fourth defendant had verified the additional written statement, but the
application in I.A.No.2 of 2019, though the affidavit was sworn only by
the fourth defendant alone had been filed on behalf of all the defendants.
It is also pointed out that in the present revision petition, the first
defendant had been shown as the second respondent. Quite apart from
all these facts, it had been stated by Mr.D.Shivakumaran that if reasons
are not properly advanced for filing an additional written statement, the
Court should scrutinize the said affidavit filed in support of the said
application and if additional written statement has been sough to be filed,
as a matter of course, without stating any new facts, then the court can
always reject the same. In this connection, the learned counsel also relied
upon the judgment of a learned Single Judge of this court in the case of
A.Manohar Prasad and Others V. Prasad Production Pvt. Ltd. reported
in (2019) 1 LW 54.
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4. Paragraph 10 of the judgment extracted hereunder:
10. No doubt, that in a catena of judgments, it has
been held that an application seeking permission to file
such an additional written statement can be permitted with
the Courts leave at any stage. However, such a discretion
of granting leave to file additional written statement could
be exercised by the trial Court only after satisfying itself
that the defendant had a reasonable cause for not having
raised this plea at an earlier point of time and for any
other reasons for the delay in receiving such pleas at the
belated stage and while considering such reasonings, the
trial Court would also be required to consider the conduct
of the parties and ascertain as to whether the defendant is
indulging in any act of protracting the proceedings or
otherwise causing any hardships to the plaintiff. To put it
in other words, what would be required for granting such
a leave to file additional written statement under Order 8
Rule 9 is that the reasons adduced therein should be
sufficient enough to touch the conscience of the trial Court
to exercise such discretion. It goes without saying that
such an application without proper reasoning or without
any reasonings at all, requires no consideration and the
trial Court will not be justified in exercising its discretion
in the absence of any reasoning, since Order 8 Rule 9 bars
additional pleadings, after filing of the written statement.
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5. Mr.P.Jagadeesan, learned counsel for the revision petitioner
however pointed out that after perusal of the original written statement
which had been filed by the father, the fourth defendant found that
several facts had been left out and are required to be stated. It had been
stated that in the original written statement, there was no mention about a
registered partition deed dated 21.06.1978 and also another partition
deed dated 10.11.1977 which according to Mr.P.Jagadeesan, will have a
direct bearing on the reliefs sought in the plaint and on the stand taken
by the defendants with respect to the averments made in the plaint.
6. The learned Judge however found fault in the pleading of these
two written statements by stating that entirely inconsistent stand had
been taken, as originally the defendant had stated that no partition was
effected and therefore stated that introducing the two partition deeds
would mean that the defendants have taken a stand on a different footing.
7. There is also another aspect which is pointed out by
Mr.P.Jagadeesan, namely, that the defendants herein had an occasion to
file an earlier suit in O.S.No.520 of 2000 on the file of the I Additional
District Munsif Court, Salem and it is stated that reference to such suit,
had not been made in the plaint. Therefore, an obligation arose on the
defendants to point out that fact by way of additional written statement.
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8. Let me not examine all these facts in detail because all these are
matters of evidence. It would be inappropriate to permit the parties to
plead facts to their knowledge. It is also common knowledge that
occasions always arise when during the pendency of the suit,
facts/documents which existed even prior to the institution of the suit
would be recalled/found necessitating the plaintiff or the defendant to put
them forth before the court. The court of the first instance is the court to
settle all the facts and should provide some extra latitutde for inclusion
of pleadings relating to all the facts particularly when such pleadings are
substantiated or authenticated by documents.
9. In the present case also whether the introduction of the two
partition deeds would be destructive to the defendants is an issue, the
learned Judge should decide on conclusion of evidence. Even while
examining the matter on the basis of the affidavits, it appears that the
learned III Additional District Judge, Salem, has come to certain
conclusions which may not be acceptable to the parties concerned and
which conclusion should have been reached only on examination of
evidence and after affording the respective parties to speak in the
witness box and adduce evidence.
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10. The order under revision should be interfered with and even
though this conclusion is very seriously objected by Mr.D.Shivakumaran,
I would rather grant liberty to the plaintiff to file reply to the additional
written statement and thereby complete the pleadings and thereafter
invite the parties to adduce evidence and to grace the witness box.
11. The order under revision is set aside and I.A.No.2 of 2019 is
allowed and permission is granted to the defendants to file additional
written statement. Even without filing necessary application seeking
leave of the court, the plaintiff is granted liberty to file reply statement.
Necessary time limit for the same shall be decided by the learned III
Additional District Judge, Salem, before whom O.S.No.306 of 2015 is
pending.
12. Accordingly, this Revision is allowed. No order as to costs.
Consequently, connected miscellaneous petition is closed.
08.07.2021
Index : Yes/No
kal
https://www.mhc.tn.gov.in/judis/
C.V.KARTHIKEYAN,J.
kal
To
The III Additional District Judge,
Salem.
C.R.P.PD.No.2335 of 2020 &
CMP No.14676 of 2021
08.07.2021
https://www.mhc.tn.gov.in/judis/
