Madras High Court

K.Marimuthu vs R.Easwaramurthi on 27 April, 2023

                                                                               C.R.P.(PD).No.1089 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 27.04.2023

                                                          CORAM:

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                  C.R.P.(PD).No.1089 of 2021
                                                 and C.M.P.No.8529 of 2021

                     K.Marimuthu                                                          ...Petitioner

                                                                Vs.

                     R.Easwaramurthi                                             ...Respondent
                     Prayer: Civil Revision Petition filed under Article 227 of Constitution of

                     India, against the dismissing petition for receiving additional written

                     statement, vide order dated 03.02.2020 in I.A.No.485 of 2019 in

                     O.S.No.462 of 2015 on the file of the Additional Sub Court, Tiruppur.


                                        For Petitioner      :     Mr.K.Sudhakar
                                        For Respondent     :      Mr.N.S.Suganthan

                                                          ORDER

This Civil Revision petition has been filed against the dismissing

petition for receiving additional written statement vide order dated

03.02.2020 in I.A.No.485 of 2019 in O.S.No.462 of 2015 on the file of

the Additional Sub Court, Tiruppur.

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C.R.P.(PD).No.1089 of 2021

2.Learned counsel for the petitioner submitted that the learned

Judge failed to consider that the petitioner had earlier engaged one

counsel, who had filed a written statement saying that the written

statement should be filed within time without properly disclosing the

petitioner's case. He submitted that the learned Judge failed to consider

that after changing counsel and the petitioner had narrated the entire

episode what had happened between the petitioner and the respondent.

3.He further submitted that the present counsel had advised the

petitioner to file an amendment in the written statement but the Court

below returned the petitioner's amendment petition saying that this

petition is not maintainable and directed the petitioner's counsel to file a

petition to receive additional written statement. Even in the returning

amendment petition itself, the Court indicated to file additional written

statement. He further submitted that the learned Judge failed to consider

that the petitioner had filed the present petition under Order 8 Rule 9

CPC requesting the Court to receive the additional written statement.

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C.R.P.(PD).No.1089 of 2021

4.In support of his contention, learned counsel for the petitioner

has relied upon the following judgments to substantiate his case:

(i)M/s.Modi Spinning & Weaving Mills Co. Ltd. And Another

vs.M/s.Ladha Ram & Co. reported in 1976 4 SCC 320.

(ii)P.N.Amirthavalli and 2 Others vs. S.V.Saravanan reported in

2010 (1) MWN (Civil) 653 (Mad).

5.Per contra, the learned counsel for the respondent would submit

that the revision petitioner/defendant had filed written statement in the

original suit as early as on 17.10.2016, in the said written statement he

had clearly admitted that the Sale Agreement was entered to sell the suit

property. Subsequently after framing issues, the trail had commenced

and the revision petitioner had taken several occasions to cross-examine

the respondent/plaintiff. Since the revision petitioner did not cross-

examine the plaintiff, he was set ex-parte. Thereafter, the revision

petitioner filed an Interlocutory application I.A.No.504 of 2017 to set

aside ex-parte order. On 28.06.2017, the revision petitioner filed another

Interlocutory Application to add one line in written statement stating that

“Original document is in the possession of plaintiff”.

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C.R.P.(PD).No.1089 of 2021

6.He would further submit that on 28.08.2019, the revision

petitioner had cross examined the respondent/plaintiff and during all the

occasions, he had clearly admitted that the agreement was entered into

for the purpose of sale, now the revision petitioner cannot turn around

and say that the agreement was entered for the purpose of loan. The

revision petitioner is trying to bring inconsistent pleas by way of an

addition written statement which is not acceptable in law. Hence prayed

this Court to dismiss the present petition.

7.Heard, learned counsel for the petitioners and learned counsel for

the respondent and perused the materials available on record.

8.In order to decide the issue in this Civil Revision Petition, this

Court is of the view that the following judgments of the Hon'ble Supreme

Court and this Court are extracted hereunder:

(a) In Murthi Gounder V. Karuppanna (AIR 1976 Madras 302),

while rejecting the request of the defendant, for filing an additional

written statement, this Court had held “this is a case where nearly two years

after having filed his written statement, the first defendant had acquired some https://www.mhc.tn.gov.in/judis

C.R.P.(PD).No.1089 of 2021

further information and wanted to set up a case which is different from the case

which he had originally set up in his written statement. Considering the stage at

which such an application has been filed, undoubtedly, prejudice would be

caused to the plaintiff who will now be forced to file a reply statement and as a

consequence thereof, fresh and different issues will have to be framed and the

trial would have to begin once over again.”

(b) In Modi Spg. And Wvg. Mills V. Ladha Ram and Co. (1976)

4 SCC 320, it had been held that the request for amendment of the

written statement had not been allowed when the effect of such

amendment would be to displace the plaintiff's suit by depriving him of a

valuable right, which had already accrued to him. It had also been held

that an entirely different and new case cannot be substituted by way of an

amendment of the written statement.

had been held that, withdrawal of the admission by the defendant, by way

of an amendment of the written statement, cannot be allowed when the

issues had been framed by the trial Court on the basis of the admission by

the defendant.

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C.R.P.(PD).No.1089 of 2021

(d) In N. Srinivasan v. Muthammal (1998(II) CTC 94), it had

held that an application, under Order VIII Rule 9, for filing an additional

written statement, cannot be allowed, if it seeks to raise inconsistent or

alternative pleas, depriving the plaintiffs the benefit of statutory

presumptions. The request for filing an additional written statement can

also be rejected, if it is made belatedly and without bonafides.

(e) In Devanbu V. Sundara Raj (2005(1) CTC 563), it had been

held that when a defendant had waived the defence of res judicata by not

raising it in the original written statement, he cannot raise it thereafter, by

way of an additional written statement.

(f) In R.S. Nagarajan V. R.S. Goapalan and others (2007(1) CTC

586), it had been held that the defendant cannot introduce a new case or

mutually destructive pleas, by way of an additional written statement.

(g) In Tajdeen V. Abdul Muthalif (2009(3) MLJ 959), it had been

held that Only on sound reasons enumerated under Order 8 Rule 9 of the

Civil Procedure Code, Court can grant leave to file additional written

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C.R.P.(PD).No.1089 of 2021

statement. Defendant cannot be permitted to file additional written

statement by taking an antithetical stand, quite contrary to that taken in

the written statement, after a major part of the trial was over.

9.At this juncture, it would be necessary to extract Order 6 Rule 17

of the Code of Civil Procedure:

Amendment of Pleadings : The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

10.The above Rule would clearly provide that no application for

amendment shall be allowed after the commencement of trial. On going

through the typed set of papers, it is clear that trail has commenced and

the revision petitioner had also cross examined the respondent/plaintiff.

At this juncture, if the claim of the revision petitioner to file additional

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C.R.P.(PD).No.1089 of 2021

written statement is allowed it would affect the trial and the trial court

ought to frame new issues based on the new facts introduced by the

revision petitioner which would cause great prejudice to the

respondent/plaintiff.

11.The relevant paragraphs of the order of the trial Court dated

03.02.2020 are extracted hereunder:

,t;tof;fpy; 2016k; tUlNk kDjhuh;

vjph;tof;Fiu jhf;fy; nra;J jw;NghJ thjpia kDjhuh; FWf;F tprhuiz nra;j gpwF ,k;kDit jhf;fy; nra;Js;shh;. NkYk; kDjhuh; njhptpf;Fk; rq;fjpfs; Vw;fdNt jhf;fy; nra;j vjph;tof;Fiuf;F KuzhfTk; cs;sJ. vdNt, kDjhuh; jhf;fy; nra;j ,k;kD epiyf;fj;jf;jy;y vd;Nw ,e;ePjpkd;wk; fUJfpwJ. vdNt, ,e;ePjpkd;wk; ,k;kDit js;Sgb nra;J cj;jutpLfpwJ.

12.In the light of the above guidelines given by the Supreme Court

and this Court and perusal of records, it is clear that the revision

petitioner had not shown sufficient cause to interfere with the order of

the trial court.

13.Considering the above facts and circumstances of the case, amd

the submission made by the learned counsel appearing on either side, this

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C.R.P.(PD).No.1089 of 2021

Court is not inclined to interfere with the order passed by the Trial Court

and accordingly, the Civil Revision Petition is dismissed. However, there

shall be no order as to costs. Consequently, the connected miscellaneous

petition is closed.