Madras High Court
R.Rathinavelu vs P.A.Sankaramani on 26 July, 2021
CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26.07.2021
Coram:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRP(PD).No.4312 of 2018
AND
CMP.No.23590 of 2018
1.R.Rathinavelu
2.P. Rajamanickam
3.P.Kumar
4.Rani ... Petitioners
Vs.
1.P.A.Sankaramani
2.P.S.Narayanan
3.S.Prasad
4.P.A.Seetha
5.A.Gowri
6.K.S.Venugopal
7.K.N.Krishnan
8.S.Nandagopal
9.K.V.Sundaram
(Represented by power agent A. Ramakrishnan)
10.Jagadeeswaran
11.C.Ramakrishnan
12.Dhanalakshmi
13.Minor.Naveen Rajan
14.Minor Deepika
(Respondents 13 & 14 are
represented by R-12/mother/Dhanalakshmi) ...Respondents
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1/10
CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
PRAYER: Civil Revision Petition is filed under Section 115 of the
Civil Procedure Code, to set aside the order of the learned First
Additional Subordinate Judge, Coimbatore in I.A.No.645 of 2018 dated
20.09.2018 confirming the fair and decreetal order in O.S.No.359 of
2011.
For Petitioners : Mr.C.R.Prasanan
For Respondents : Mr.D.Ravichander - R1 to R9
Not ready in notice - R10 & R11
Given up - R12 to R14
ORDER
This Civil Revision Petition has been filed challenging the
order passed by the learned First Additional Subordinate Judge,
Coimbatore in I.A.No.645 of 2018 dated 20.09.2018 confirming the fair
and decreetal order in O.S.No.359 of 2011, thereby dismissing the
petition seeking leave to file an additional written statement. The
petitioners are the defendants 1 to 3 and 10. So, the respondents 1 to 9
are the plaintiffs.
2. While pending suit, the petitioners sought for leave to file an
additional written statement which was denied by the court below and
aggrieved by the same, the present petition is filed.
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
3. The learned counsel for the petitioners would submit that the
suit has been filed seeking several declarations and permanent injunction
in respect of the suit property. Further, they prayed for a declaration that
the suit property should be declared as a common road. On receipt of suit
summon, the petitioners filed a written statement on 05.03.2012 and also
made a counter claim for the suit property. After cross-examination of
PW1, the petitioners came to know about the properties with regard to
the sale deeds executed by the 5th defendant in favour of the 6th
defendant. Therefore, the petitioners filed a petition seeking leave to file
an additional written statement. The relief prayed by the plaintiffs as well
as the petitioners are one and the same, to declare the sale deed executed
by the 4th defendant in favour of the defendants 5 and 6 as null and void.
There is absolutely no prejudice would be caused to the respondents 1 to
9 herein if the petitioners are allowed to file their additional written
statement. He further submitted that by way of an additional written
statement, he wanted to pray specific plea on 13.01.2010. The 4th
defendant entered into a varthamana agreement with the 5th defendant
agreeing to sell a portion of the suit property subject to terms and
conditions. As as per the terms and conditions, the 5th defendant agreed
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
to purchase a portion of the suit schedule property and 4th defendant
undertook to execute a sale deed in favour of the defendants 5 and 6 on
acceptance of the post-dated cheques issued by the 5th defendant towards
the sale consideration. Accordingly, sale deeds were executed in favour
of the defendants 5 and 6 and the cheques were presented for collection.
The same were returned dishonoured. As per the agreement, if the
amount not realised, then sale deeds would revoke automatically. So,
these are all the defences to be included in the additional written
statement.
4. In support of his contention, he also relied upon the following
judgments:-
(i) 2007 (3) CTC 400 (Usha balashaheb Swami
and others Vs. Kiran Appasao Swami and others);
(ii) 2014 SCC Online Mad 6785 (Boopathy and
another Vs. Palaniammal) and
(iii) 2016 (4) CTC 750 (Devendran and others Vs.
P.v.Palani).
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
5. Per contra, the learned counsel for the respondents 1 to 9
submitted that the suit has been filed in the year 2011 and the first
written statement was filed as early as on 05.03.2012. Even at the time of
filing the written statement, the petitioners had the present defence and
even then, they did not bring it in the earlier written statement. The
present petition has been filed after examination of PW1, that too, after 6
years from the date of the original written statement. He further
submitted that during pendency of the suit, the alleged gift deeds have
been executed on the basis of the sale deed executed by the 4th defendant
in favour of the defendants 5 and 6. The alleged gift settlement deeds are
sham and nominal and not binding the respondents 1 to 9 herein. After
examination of PW1, the petitioners herein, intended to introduce a new
plea that is not permissible under any law. Therefore, the court below
had rightly dismissed the petition and nothing warrants to interfere by
this court.
6. In support of his contention, he relied upon the judgments
reported in
1) 2007 (1) CTC 586, (R.S.Nagarajan Vs.
R.S. Gopalan & Others);
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
2) 1999 (3) CTC 52, (Subramanian & Others Vs.
Jayaraman ) and
3) 2005 (1) CTC 563, (Devanbu Vs. Sundara Raj
& Others).
7. Heard Mr.C.R.Prasanan, learned counsel for the petitioners and
Mr.D.Ravichander, learned counsel for the respondents R1 to R9.
8. The petitioners have filed a petition seeking leave to file an
additional written statements in the suit. Admittedly, the petitioners
already filed the written statements on 05.03.2012 and after cross-
examination of PW1, the present petition has been filed seeking
permission to receive an additional written statement.
9. On perusal of the additional written statement sought to be filed
revealed that as early as on 13.01.2011, the 4th defendant had entered
into a varthamana agreement with the 5th defendant, who agreed to sell a
portion of the schedule mentioned property subject to the terms and
conditions. Accordingly, the 4th defendant received the post-dated
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
cheques issued by the 5th defendant and executed the sale deeds.
Thereafter, when the cheques were presented for collection, they were
returned dishonoured for the reason “funds insufficient”. As per the
agreement, the sale deeds are vitiated for want of sale consideration.
Therefore, on the strength of the alleged sale deeds, the gift deeds have
been executed in favour of Perur Chettipalayam Town Panchayat by the
defendants 5 and 6.
10. In fact, the respondents 1 to 9 also prayed for a declaration
declaring those sale deeds as null and void on different set of facts. The
defendants 1 to 3 and 10 also sought for a declaration declaring those
sale deeds as null and void on different set of facts. Therefore, the
additional written statement sought for by the petitioners would not
cause any prejudice to the respondents 1 to 9 herein.
11. The learned counsel for the petitioner has relied upon the
judgment reported in
2007 (3) CTC 400 - Usha balashaheb Swami and
others Vs. Kiran Appasao Swami and others);
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
The Hon'ble Supreme Court of India has held in paragraph Nos.18,
19 and 20 that the defendants are entitled to their respective shares and
also to plead inconsistent stand by way of additional written statement
and also by way of amendment.
12. In the case on hand, as stated supra, the petitioners by way of
filing an additional written statement to support their counter claim, the
sale deeds which were executed by the fourth defendant in favour of the
defendants 5 and 6 are vitiated by non-payment of valid consideration. It
would not cause any prejudice to the respondents 1 to 9. Therefore, the
above judgments cited by the learned counsel for the petitioners is
squarely applicable to the case on hand.
13. In so far as the judgments cited by the learned counsel for the
respondents 1 to 9 are concerned,the new pleas cannot be introduced.
14. It is an admitted fact that the petitioners as well as the
respondents 1 to 9 have taken similar pleas for declaration declaring
those sale deeds executed by the fourth defendant in favour of the
defendants 5 and 6 are null and void. Therefore, it would not amount to
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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
introduction of any new pleas and as such, the judgments cited by the
learned counsel for the respondents are not helpful to the case on hand.
15. In view of the above, the Civil Revision Petition is allowed
and the order dated 20.09.2018 passed in I.A.No.645 of 2018 in
O.S.No.359 of 2011 on the file of the First Additional Subordinate Court,
Coimbatore, is set aside. On receipt of the additional written statement,
the trial court is directed to dispose of the suit within a period of six
months from the date of receipt of a copy of this order. However, the
respondents 1 to 9 are also permitted to file a reply statement, if any. No
costs. Consequently, connected miscellaneous petition is closed.
26.07.2021
Index:Yes / No
Internet:Yes/No
Speaking Order/Non-Speaking Order
gv
To
The First Additional Subordinate Judge,
Coimbatore
https://www.mhc.tn.gov.in/judis/
CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018
G.K.ILANTHIRAIYAN.,J.
gv
CRP(PD).No.4312 of 2018
AND
CMP.No.23590 of 2018
26.07.2021
https://www.mhc.tn.gov.in/judis/
