Madras High Court
Rm.Ramasamy vs Radhakrishnan on 13 June, 2023
C.R.P(MD)No.974 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.06.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.974 of 2022
and
C.M.P.(MD)No.8959 of 2022
RM.Ramasamy
...Petitioner/1st Respondent/Plaintiff
Vs.
1.Radhakrishnan
2.Rajendhran
3.Ulagi
4.Manickam @ Channamani
5.Radha
6.Jayalakshmi
7.Vellaiyammal
...Respondents 2 to 7 /Respondents 2 to 7 /Defendants 1, 3 to 7
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order of the
learned III Additional District Judge, Tiruchirappalli made in I.A.No.4 of
2021 in O.S.No.76 of 2014 dated 20.01.2022.
For Petitioner : Mr.K.K.Senthil
For Respondent : Mr.K.Baalasundharam, Senior counsel
For Mr.R.Paranjothi
ORDER
The petitioner is aggrieved by the impugned fair and decreetal
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C.R.P(MD)No.974 of 2022
order dated 20.01.2022, in I.A.No.4 of 2021 in O.S.No.76 of 2014,
passed by the learned III Additional District Judge, Tiruchirappalli.
2.I.A.No.4 of 2021 was filed under Order 8 Rule 9 of CPC for
receiving additional written document. By the impugned order, the III
Additional District Court, Tiruchirappalli has allowed the prayer of the
first respondent herein (second defendant in the above suit) with the
following observation:
“6.Point:
The petitioner has filed the petition to receive the
additional written statement. Admittedly the respondent has
filed the suit for partition. In the written statement itself the
petitioner has stated that the suit is bad for partial
partition. The alleged will of Ramasamy has been denied in
the written statement. In the additional written statement,
properties which were omitted in the plaint have been
listed. The contents of additional written statement are not
inconsistent to the earlier statement. The additional written
statement particulars are continuation of the earlier
statement. They cannot be considered as filling up the
lacuna. Partition suit is concerned both properties must be
treated in equal footing. Hence, the objections of the
respondent are not acceptable.
7. The learned respondent Counsel submitted a
citation of the Honourable High Court of Judicature at
Madras delivered in CRP(PD) No.214 of 2014 on
08.12.2016 in K. Sheela Rani Vs. Nayagam and others
where in para 17 reads as follows:
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C.R.P(MD)No.974 of 2022
"In the above decision, this court held that Order 8,
Rule 9 C.P.C does not say that no application for receiving
the additional written statement should be allowed after the
trial has commenced and Under Order 8, Rule 9 C.P.C.,
wide discretion is given to the court to give a chance to the
parties to agitate their rights even raising court to give a
chance to the parties to agitate their rights even raising
subsequent plea for which the court should not be rigid and
the court should exercise their discretion liberally when it
does not affect the rights of the parties."
According to the above citation the court can receive
additional written statement at any stage. If the additional
written statement is against the earlier pleadings, it can be
rejected. As already stated the petitioner has filed the
additional written statement in consonance with the earlier
statement. Hence, reason stated to receive the additional
written statement is acceptable and the petitioner is
deserved to the petition relief.
7. Consequently, the petition is allowed and ordered
to receive the additional written statement.”
3.The petitioner is the plaintiff before the III Additional District
Court, Tiruchirappalli in O.S.No.76 of 2014. The petitioner has filed the
above suit for partition of the suit schedule property.
4.After the commencement of trial and after examination of P.W.1,
the first respondent herein filed I.A.No.4 of 2021 under Order 8 Rule 9
of CPC for receiving the additional written document.
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C.R.P(MD)No.974 of 2022
5.The learned counsel for the petitioner submits that the suit is of
the year 2014 and the defendants 1, 3 to 7 had also remained exparte and
they were set exparte on 23.12.2014. It is further submitted that the
defendants 1, 3 to 7 remained exparte. The first respondent herein filed
I.A.No.4 of 2021, in the year 2019, after the trial commenced and after
P.W.1 was examined and cross examined and after chief examination of
P.W.2 was partly over. It is submitted that although the powers are
vested with the Court to receive additional written statement under Order
8 Rule 9 of CPC, such relief can be granted only for sufficient cause. It is
submitted that dealing with some of the similar situation, this Court in
the case of Murthi Gounder v. Karupanna Gounder reported in AIR
1976 Mad 302, held that the defendants having filed written statement
cannot file an application for filing additional written statement after two
years. Reference is made to the following paragraph, which reads as
under:
“This is a case where nearly two years after having
filed his written statement, the first defendant had acquired
some 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 reply
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C.R.P(MD)No.974 of 2022
statement an as a consequence thereof, fresh and different
issues will have to be framed and the trial would have to
begin once over again. Taking these circumstances into
consideration, I am of the view that the learned District
Munsif rightly refused to permit the revision petitioner to file
the additional written statement. I see no ground to interfere.
The petition is therefore, dismissed.”
6.The learned counsel for the petitioner has also place reliance on
the decision of this Court in the case of K.Marimuthu v.
R.Easwaramurthi in C.R.P.(MD)No.1089 of 2021, wherein this Court
has held as follows:
“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 trial 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 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 would
cause great prejudice to the respondent/plaintiff.”
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C.R.P(MD)No.974 of 2022
7.That apart the learned counsel for the petitioner further
submitted that by virtue of amendment, the first respondent
herein/second defendant/petitioner in I.A.No.4 of 2021 has sought to
include several properties, which are not part in the above suit. That
apart it is submitted that three of the properties are in the name of the
third defendant/third respondent herein and that the third respondent,
who is the mother of the contesting parties is still alive and therefore, the
property cannot be included for partition. It is further submitted that
during the pendency of the suit, the rest of the respondents were set
exparte. The parties had also entered into compromise to partition the
property in terms of the registered Will dated 09.11.2000, executed by
Late Ramsamy Devar, who passed away on 20.06.2001. However, after
filing the written statement on 31.03.2015, the first respondent decided to
file I.A.No.4 of 2021 on 05.03.2021 for receiving additional written
statement. It is submitted that the purpose of filing I.A.No.4 of 2021 by
the first respondent was only to delay in getting the rights of the
petitioner herein and delay the disposal of O.S.No.76 of 2015 filed by the
petitioner herein for partition of the suit schedule property, pursuant to
the registered Will dated 09.11.2000, after the death of the father of the
petitioner and the father of the rest of the respondents, after husband of
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C.R.P(MD)No.974 of 2022
the third respondent. It is further submitted that in the written statement
dated 31.03.2015, the first respondent had taken contradictory stand in
paragraph no.3. The first respondent has disputed the genuinity of the
registered Will dated 09.11.2000, which is said to be executed by late
Ramasamy Devar, and whereas in paragraph no.7 the first respondent has
admitted to equal rights of the petitioner, the first respondent and the
second respondent herein. Thus the first respondent herein has tastily
admitted the Will dated 09.11.2000. It is submitted that B schedule
property was also acquired by the Government for National Highway
project. 1/3rd of the share has been received by the first respondent and
also by the petitioner and the second respondent. Thus the purpose of
filing I.A.No.4 of 2021 was also to defeat the rights of the petitioner
herein.
8.Per contra the learned Senior Counsel appearing for the
respondents/defendants would submit that the impugned order passed by
the learned Additional District Judge is well reasoned and does not
require interference. I.A.No.4 of 2021 was although filed belatedly, it
was not intended to delay the disposal of O.S.No.76 of 2014. It is
submitted that nevertheless the delay there has to be finality of inter-se
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C.R.P(MD)No.974 of 2022
right of the parties as the suit is filed by the petitioner was for partition.
9.It is submitted that the partition cannot be its part. It has to be
holistic. That apart it is always open for the petitioner to file additional
reply statement to the additional written statement filed by the first
respondent. Therefore, the civil revision petition is liable to be dismissed.
Finally the learned Senior counsel contended that there is no final
determination for the inter-se right of the parties by merely allowing the
petition under Order 8 Rule 9 of CPC.
10.The learned Senior Counsel submitted that only inconsistent
and contradictory allegations in negation to the admitted position of facts
or mutually destructive allegations of facts should not be allowed to be
incorporated by means of amendment to the pleadings. Whereas this is
not the case. He place reliance on the judgment of this Court in the case
of Soundarajan and another v. Vijayalakshmi in C.R.P.(MD)No.4730 of
2014.
11.The learned Senior Counsel submitted that leave to file
additional written statement is to be granted liberally except when the
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C.R.P(MD)No.974 of 2022
defendant raises a mutually destructive pleas and when he tries to
introduce altogether a new case. He place reliance on another judgment
of this Court in the case of S.Suresh v. Sivabalakannan and others in
C.R.P.(MD)No.700 of 2005.
12.I have considered the arguments advanced by the learned
counsel for the petitioner and the learned Senior Counsel for the
respondent.
13.The first respondent was negligent in not filing I.A.No.4 of
2021 earlier for filing additional written statement. The suit was filed by
the petitioner to partition the suit in 2014. The trial Court is required to
bring a final closure of dispute between the parties. In a partition suit, the
trial Court has to draw curtain, so that all issues are decided once for all
and there is no scope for ambiguity in future.
14.The first respondent however having allowed the trial to
commence and having filed I.A.No.4 of 2021 for receiving additional
written statement only on 05.03.2021 has to pay costs. The Court ought
to have awarded cost while the Court below has not awarded.
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C.R.P(MD)No.974 of 2022
15.Considering the above, I do not wish to interfere with the
impugned order passed by the learned III Additional District Judge,
Tiruchirappalli. However awards of costs to the petitioner by the first
respondent herein. The first respondent to pay a sum of Rs.25,000/- to
the petitioner within a period of four weeks from the date of receipt of
copy of this order.
16.Only subject to such compliance by the first respondent herein
and reporting compliance before the III Additional District Judge,
Tiruchirappalli, additional written statement filed by the petitioner shall
be taken on file. The petitioner shall file reply statement if any within a
period of four weeks thereafter. The III Additional District Court,
Tiruchirappalli shall frame additional issues if any and allow the first
respondent to let in additional evidence. The III Additional District
Court, Tiruchirappalli shall endeavour to dispose O.S.No.76 of 2014 as
expeditiously as possible preferably within a period of nine months from
the date of receipt of copy of this order.
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C.R.P(MD)No.974 of 2022
17.The Civil Revision Petition is with the above observation.
Consequently, connected miscellaneous petition is closed.
13.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Mrn
To
1.The Sub Judge, Srivilliputhur.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P(MD)No.974 of 2022
C.SARAVANAN,J.
Mrn
C.R.P(MD)No.974 of 2022
13.06.2023
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