Madras High Court
Saraswathy vs Prabha on 19 January, 2022
C.R.P.(PD)No.3667 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)No.3667 of 2015
and M.P.No.1 of 2015
Saraswathy .. Petitioner
Vs.
1.Prabha
Jaganathan (died)
2.Ambika @ Karunambigai
3.Lakshmi Priya .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 17.08.2015
made in I.A.No.347 of 2015 in O.S.No.19 of 2008 on the file of the Sub
Court, Gobichettipalayam.
For Petitioner : Mr.A.Thiyagarajan
For R1 : Ms.Dhanwanthi
for Mr.K.Govi Ganesan
For R3 : No appearance
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)No.3667 of 2015
ORDER
(The matter is heard through “Video-conferencing”)
Civil Revision Petition is filed against the fair and decretal order
dated 17.08.2015 made in I.A.No.347 of 2015 in O.S.No.19 of 2008 on
the file of the Sub Court, Gobichettipalayam.
2.The petitioner is 4th defendant, 1st respondent is plaintiff, one
Jaganathan (died) is the 1st defendant and the respondents 2 and 3 are
defendants 2 and 3 in O.S.No.19 of 2008 on the file of the Sub Court,
Gobichettipalayam. The 1st respondent filed the said suit for partition and
separate possession of the suit property. The petitioner filed written
statement on 30.07.2008 and is contesting the suit. The trial commenced.
The 1st respondent filed proof affidavit, examined herself in chief as
P.W.1 and marked five documents as Exs.P1 to P5. The suit was posted
on 26.06.2015 for cross-examination of P.W.1. At that stage, the
petitioner filed present I.A.No.347 of 2015 in O.S.No.19 of 2008 under
Order VIII Rule 9 and Section 151 of C.P.C. to permit her to file
additional written statement.
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C.R.P.(PD)No.3667 of 2015
3.According to the petitioner, only at the time of filing application,
she got the copy of the Will dated 28.10.1987 and on perusal of contents
of the said Will, she came to know that certain important facts have been
omitted to be mentioned in the written statement filed by her on
30.07.2008. The omission to mention about the Will is neither wilful nor
wanton. Unless the petitioner is permitted to file additional written
statement, she will be loosing her valuable property and prayed for
allowing the application.
4.The 1st respondent filed counter affidavit and stated that in the
plaint itself, she has elaborately stated about the Will dated 28.10.1987.
The petitioner has also made her defence about the Will in the written
statement and denied that the petitioner came to know about the Will
only at the time of filing of application. The 1st respondent further stated
that the petitioner has taken inconsistent plea in the additional written
statement from that of the defence taken in the original written statement
filed by her earlier. On earlier occasion, the plaint was amended and the
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C.R.P.(PD)No.3667 of 2015
Court called the defendants for filing additional written statement. The
petitioner has not filed additional written statement during that time. The
trial Court, based on the pleadings, framed issues. The trial commenced.
The 1st respondent examined herself as P.W.1 in chief. Only when the suit
was posted for cross-examination of P.W.1 by the defendants' counsel,
the petitioner filed present application to drag on the proceedings and
prayed for dismissal of the said application.
5.The learned Judge considering the averments in the affidavit,
counter affidavit and the judgments relied on by the parties, dismissed
the application.
6.Against the said fair and decretal order dated 17.08.2015 made in
I.A.No.347 of 2015 in O.S.No.19 of 2008, the petitioner has come out
with the present Civil Revision Petition.
7.The learned counsel appearing for the petitioner contended that
the learned Judge erred in holding that the petitioner has taken
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C.R.P.(PD)No.3667 of 2015
inconsistent plea in the additional written statement. There is no
inconsistent plea or destructive plea taken by the petitioner in the
additional written statement. The additional written statement is filed
only for clarification. The learned Judge failed to see that in the
registered partition deed dated 23.02.1998, there is no mention about the
Will dated 28.10.1987. The trial is only in preliminary stage and the
petitioner must be given fair opportunity. The application may be allowed
on terms and prayed for allowing the Civil Revision Petition.
8.The learned counsel appearing for the 1st respondent made her
submissions in support of the order passed by the trial Court and prayed
for dismissal of the Civil Revision Petition.
9.Though the 3rd respondent has entered appearance through
counsel, there is no representation for him, when the matter is taken up
for hearing.
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C.R.P.(PD)No.3667 of 2015
10.Heard the learned counsel appearing for the petitioner as well
as the learned counsel appearing for the 1st respondent and perused the
entire materials on record.
11.From the materials on record, it is seen that in the written
statement filed by the petitioner on 30.07.2008, she has denied the
existence of the Will dated 28.10.1987 and also denied entire averments
in paragraph 5 of the plaint, which deals with the Will dated 28.10.1987.
On perusal of additional written statement filed in the typed set of papers
in the present Civil Revision Petition, it reveals that in the additional
written statement, the petitioner admits existence of the Will and stated
that the said will was not acted upon. She has also stated in the affidavit
filed in support of the present application that only on going through the
entire contents of Will, she came to know that certain important facts
were omitted to be stated in the earlier written statement filed by her.
From the above facts, it is clear that the petitioner is introducing a new
case in the additional written statement and she is giving up her stand
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C.R.P.(PD)No.3667 of 2015
taken in the original written statement filed by her earlier. The Court can
permit the defendants to file additional written statement only when the
same is necessary to decide the issue in the suit. The defendant is not
entitled to file additional written statement stating inconsistent plea to the
defence taken in the original written statement and cannot be permitted to
introduce a new case by way of filing additional written statement. The
learned Judge has considered all the materials on record as well as the
judgments relied on by the parties and rightly dismissed the application.
There is no error in the said order of the learned Judge warranting
interference by this Court.
12.For the above reasons, the Civil Revision Petition stands
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
19.01.2022
Index : Yes/No
Internet: Yes/No
kj
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)No.3667 of 2015
V.M.VELUMANI,J.
Kj
To
The Subordinate Judge
Gobichettipalayam.
C.R.P.(PD)No.3667 of 2015
and M.P.No.1 of 2015
19.01.2022
https://www.mhc.tn.gov.in/judis
