Telangana High Court
Smt. Shahzadi Begum vs Syed Quamruddin on 29 November, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.872 OF 2019
ORDER:
Aggrieved by the order dated 22.01.2019 in I.A.No.1274
of 2018 in O.S.No.1307 of 2013 (hereinafter will be referred as
'impugned order') on the file of learned VIII Additional District
Judge, Ranga Reddy District, the plaintiff has filed the present
Civil Revision Petition.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the learned VIII Additional
District Judge, Ranga Reddy District.
3. The brief facts of the case as can be seen from the record
available before this Court are that the plaintiff has filed suit
vide O.S.No.1307 of 2013 for partition against defendant Nos.1
to 12 in respect of suit schedule 'A' to 'C" properties on the
death of her parents. Defendant No.1, who is the brother of the
plaintiff, filed a written statement on 24.03.2014 denying the
claim of the plaintiff alleging that during the life time of
plaintiff's parents, the share of the plaintiff was settled by her
father by way of gift and silver articles from time to time, as
such the plaintiff has no claim in the schedule of properties.
During the pendency of the suit, defendant No.1 filed
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I.A.No.1274 of 2018 in O.S.No.1307 of 2013 seeking leave of the
court to file an additional written statement on behalf of the
defendant No.1 for proper adjudication of the case. It was
alleged in the affidavit filed in support of the petition in
I.A.No.1274 of 2018 that he could not instruct his earlier
counsel with reference to pleadings, as such he may be
permitted to file additional written statement. A counter was
filed by the plaintiff to the petition in I.A.No.1274 of 2018
denying the averments of the petition and mainly contended
that no reason was assigned by the defendant No.1 as to on
which grounds he is intending to file additional written
statement. It was further contended by the plaintiff that issues
have been framed on 08.03.2016 and evidence was adduced
before the Court on 13.03.2017, as such no leave can be
granted to file additional written statement, when evidence was
already adduced. The trial Court has permitted the defendant
No.1 to file additional written statement vide impugned order
dated 22.01.2019. Aggrieved by the same, the plaintiff has filed
the present Civil Revision Petition to set aside the impugned
order.
4. Heard both sides and perused the record.
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5. It is the contention of the learned counsel for the revision
petitioner/plaintiff that after framing of issues and after filing of
the chief examination affidavit of plaintiff, permitting the
defendant to file additional written statement cannot be
entertained, more particularly, when the rights of the plaintiff
are effected by such permission to defendant to file additional
written statement.
6. The suit was filed in the year 2013 and the written
statement was filed by the defendant No.1 in the year 2014 and
after four years of filing written statement i.e., in the year 2018
the petition was filed by the defendant seeking permission to file
additional written statement.
7. It is further contended that the defendant No.1 in the
additional written statement pleaded that his parents gifted the
schedule of properties to him in the presence of witnesses,
however, there is no such pleading in the earlier written
statement. Thus, the defendant No.1 has introduced new facts
by way of additional written statement. In the earlier written
statement defendant No.1 pleaded that the share of the plaintiff
was given during the life time of their parents and thereby the
plaintiff has no share in the suit schedule property. But in the
additional written statement the defendant No.1 improvised the
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case by pleading that the suit schedule 'A', 'B' and 'C' properties
are constructed with considerable share of savings of defendant
No.1 and they were orally gifted to him by his parents.
8. Learned counsel for the revision petitioner/plaintiff relied
upon a decision in P.A.Jayalakshmi v. H. Saradha and
others 1, wherein it was held by the Apex Court as under:
"11. For reasons best known to the appellant, she had
chosen to file her application seeking leave to file additional
pleadings. Such a stand might have been taken by her with a view
to obviate the bar created by reason of the proviso appended to
Order VI Rule 17 of the Code of Civil Procedure. The firm stand
taken by the appellant both before the Trial Court as also the High
Court was that her application was under Order VIII Rule 9 of
the Code of Civil Procedure. At no point of time, a contention was
raised that she wanted to amend her pleadings.
12. Ordinarily at such a belated stage, leave for filing
additional written statement is usually not granted. We may notice
that one of the plaintiffs was examined on 1.3.2007. It is accepted
at the bar that despite the fact that the appellant is said to have
discovered the existence of the Will on or about 5.2.2007, no
question was put to the said witness with regard to the said Will or
otherwise. It is only at a later stage that the aforementioned
application for grant of leave to file additional written statement
was moved."
9. Learned counsel for the revision petitioner/plaintiff relied
upon a decision rendered by the Madras High Court in Devanbu
v. Sundara Raj and others 2, wherein it was observed that
though when the defendants filed written statement, the plea of
res judicata was available to them, but they failed to take such a
stand in the written statement, therefore, such plea is deemed
to have been waived. In reply, learned counsel for the
respondent/defendant relied upon a decision rendered by the
1 (2009) 14 Supreme Court Cases 525
2 MANU/TN/0116/2005
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Madras High Court in Muthusamy v. Thangaraj 3, wherein it
was observed as under:
"11. The learned Counsel for the revision petitioner, to deny
the additional written statement, sought support from the decision
of this Court in Devanbu v. Sundara Raj and Ors., , wherein this
Court has taken a view that subsequent pleadings cannot be
entertained, when the defendant had an opportunity to raise the
plea in the original written statement itself, i.e. when a plea was
available to the party and when it has not been raised, it is not
open to the party to raise it by way of additional written statement.
In the said case, it appears, plea of res judicata, which was
available to the defendant on the date of filing of the written
statement, was not raised, when it was sought to be raised, this
Court has observed, such plea is deemed to have been waived.
Here, this kind of situation is not available. In the affidavit, it is
said, later verification of the revenue records reveals that the
plaintiffs family is not entitled to the property or something like that
and it cannot be said that the same was known to the defendant to
raise in the original written statement. Therefore, in my considered
opinion, the above ruling is distinguishable on facts, considering
the reasons as said by me, supra also.
12. In Murthi Gounder v. Karuppanna Gounder, AIR 1976
Mad. 302, this Court has taken a view, permission sought after
examination of witnesses by defendant to file additional written
statement is not maintainable. From a reading of the above
judgment, it is seen, in the original written statement, the
defendant claimed that the road, which was in dispute, was laid
only 5 months before, whereas in the additional written statement,
an attempt is made to make out a case of easementary right of
pathway extending over 12 years on the basis of the information
acquired from the Panchayat record, thereby causing prejudice to
the other side. Considering the factual situation, rejection of
additional written statement by the Court was upheld and the
same principle cannot be extended in this case, since evidence has
to be recorded only hereafter, except P.W.1 was examined in part.
13. For the foregoing reasons, I conclude, there is no error in
the order of the trial Court in allowing the petition to receive the
additional written statement, warranting my interference
under Article 227 of the Constitution of India, in view of the further
fact, the parties are having a chance to agitate the same before the
trial Court, thereby showing alternative remedy is also available, in
which case, invoking Article 227 is not desirable."
10. It is observed that the facts in Devanbu's case (supra) are
pertaining to plea of res-judicata, which was not taken at initial
3 2005 (4) R.C.R.(Civil) 569
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stage and whereas in the case on hand, there is no such
instance. Therefore, the facts of the case in Devanbu's case
(supra) cannot be made applicable to the facts of the case.
11. Learned counsel for the revision petitioner/plaintiff relied
upon a decision in S. Malla Reddy v. Future Builders
Cooperative Housing Society and others 4, wherein the Apex
Court observed as under:
"24. Although the defendant-appellants filed the petition for
striking out their own pleading i.e. written statement, labelling the
petition as under Order VI Rule 16 CPC, but in substance the
application was dealt with as if under Order VI Rule 17 CPC
inasmuch as the trial court discussed the facts of the case and did
not permit the defendants to substitute the written statement
whereunder there was an admission of the suit claim of the
plaintiff-Society. The relevant portion of the order quoted
hereinabove reveals that the trial court while rejecting the
aforementioned petition held that the defendant-appellants cannot
be allowed to substitute their earlier written statement filed in the
suit whereunder there was an admission of the claim of the
plaintiff-Society (respondent herein). Similarly in the revision filed
by the defendants, the High Court considered all the decisions
referred by the defendants on the issue as to whether the
defendants can withdraw the admission made in the written
statement and finally came to the conclusion that the defendant-
appellants cannot be allowed to resile from the admission made in
the written statement by taking recourse to Order VIII Rule 9 or
Order VI Rule 16 CPC by seeking to file a fresh written statement.
In the aforesaid premises, filing of a fresh petition by the
defendants under Order VI Rule 17 CPC after about 13 years when
the hearing of the suit had already commenced and some of the
witnesses were examined, is wholly misconceived. The High Court
in the impugned order has rightly held that filing of subsequent
application for the same relief is an abuse of the process of the
court. As noticed above, the relief sought for by the defendants in a
subsequent petition under Order VI Rule 17 CPC was elaborately
dealt with on the two earlier petitions filed by the defendant-
appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and,
therefore, the subsequent petition filed by the defendants labelling
the petition under Order VI Rule 17 CPC is wholly misconceived
and was not entertainable."
4 (2013) 9 Supreme Court Cases 349
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12. On the other hand, the learned counsel for the
respondent/defendant further relied upon a decision in Pandit
Iswardas v. State of Madhya Pradesh and others 5 wherein the
Apex Court observed that there is no impediment or bar against
an appellate Court permitting amendment of pleadings so as to
enable a party to raise a new plea. learned counsel for the
respondent/defendant relied upon a decision in B.K. Narayana
Pillai v. Parameswaran Pillai and another 6, wherein the Apex
Court observed that amendment shall be permitted if such
amendment result in solution of real controversy between the
parties without altering the cause of action and that as
prejudice less likely to arise in case of amendment of written
statement, the Courts shall be more liberal in permitting such
amendments. Even as per the decision relied upon by the
respondent/defendant in B.K.Narayana Pillai case (supra), the
approach of the Court shall be liberal in amendment of written
statement, particularly when any prejudice suffered by the other
side can be compensated by costs. But in the case on hand, the
prejudice that is apprehended by the plaintiff cannot be
compensated by costs, as the permission sought by the
defendant to file additional written statement, will have serious
impact on the case of the plaintiff. Though, it is settled law that
5 (1979) 4 Supreme Court Cases 163
6 (2000) 1 Supreme Court Cases 712
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defendants can raise alternative plea in the additional written
statement, such alternative plea shall not be destructive of the
original plea taken in the written statement. In Ram Niranjan
Kajari v. Sheo Prakash Kajaria 7 the Apex Court held as under:
"12. In our view, having considered the averments made in
the application for amendment of the written statement, it cannot
be said that in fact neither any admission was made by the
appellant in his original written statement nor had the appellant
sought to withdraw such admission made by him in his written
statement. That apart, after a careful reading of the application for
amendment of the written statement, we are of the view that the
appellant seeks to only elaborate and clarify the earlier
inadvertence and confusion made in his written statement. Even
assuming that there was admission made by the appellant in his
original written statement, then also, such admission can be
explained by amendment of his written statement even by taking
inconsistent pleas or substituting or altering his defence." The
learned Counsel appearing for the appellant mainly referred to
three Judgments of this Court. In Modi Spinning and Weaving Mills
Co. Ltd. v. Ladha Ram & Co.[3], it was held as follows at
Paragraph-10: "10. It is true that inconsistent pleas can be made in
pleadings but the effect of substitution of paras 25 and 26 is not
making inconsistent and alternative pleadings but it is seeking to
displace the plaintiff completely from the admissions made by the
defendants in the written statement. If such amendments are
allowed the plaintiff will be irretrievably prejudiced by being
denied the opportunity of extracting the admission from the
defendants. The High Court rightly rejected the application for
amendment and agreed with the trial court." In Gautam Sarup v.
Leela Jetly and others[4], after considering Panchdeo Narain
Srivastava (supra) and Modi Spinning and Weaving Mills Co. Ltd. v.
Ladha Ram & Co. (supra) and several other decisions dealing with
the amendment on withdrawal of admissions in the pleadings, it
was held at Paragraph-28 as follows:
"28. What, therefore, emerges from the discussions made
hereinbefore is that a categorical admission cannot be resiled from
but, in a given case, it may be explained or clarified. Offering
explanation in regard to an admission or explaining away the
same, however, would depend upon the nature and character
thereof. It may be that a defendant is entitled to take an alternative
plea. Such alternative pleas, however, cannot be mutually
destructive of each other." On amendments generally, in the
decision reported in Revajeetu Builders and Developers v.
Narayanaswamy and Sons and others[5], after referring to Gautam
7 (2015) 10 SCC
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Sarup (supra), the principles on amendment have been
summarized at Paragraph-63. It has been held as follows:
"63. On critically analyzing both the English and Indian cases,
some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for
amendment:
(1) whether the amendment sought is imperative for proper and
effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala
fide; (3) the amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms of
money; (4) refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case; and
(6) as a general rule, the court should decline amendments if a
fresh suit on the amended claims would be barred by limitation on
the date of application."
13. In the case on hand, the case before the trial Court is not
at the stage of pre-trial and in fact, necessary issues were
framed and plaintiff has submitted her chief-examination as
PW1 and at that stage the defendant No.1 has approached the
Court seeking permission to file additional written statement.
As rightly contended by the learned counsel for plaintiff, the
citations relied upon by the trial Court while passing the
impugned order are with regard to permission granted to the
plaintiff for filing rejoinder but not related to the permission
granted to defendant No.1 to file additional written statement.
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14. In Gurudial Singh and others V. Raj Kumar Aneja and
others 8, the Apex Court held as under:
"Some of the High Courts permit, as a matter of practice, an
additional pleading, by way of response to the amendment made
in the pleadings by opposite party, being filed with the leave of the
Court. Where it is permissible to do so, care has to be taken to see
that the additional pleading is confined to an answer to the
amendment made by the opposite party and is not misused for the
purpose of setting up altogether new pleas springing a surprise on
the opposite party and the Court. A reference to Order VI Rule 7 of
the CPC is apposite which provides that no pleading shall, except
by way of amendment, raise any new ground of claim or contain
any allegation of fact inconsistent with the previous pleadings of
the party pleading the same."
15. In view of the principle laid down above, it is clear that
amendment of pleadings shall not be misused for the purpose of
setting up altogether new pleas springing a surprise on the
opposite party and the Court, more particularly, when
necessary issues were already framed and plaintiff has filed her
chief examination affidavit as PW1.
16. It is pertinent to note that the only reason assigned by the
defendant No.1 for seeking permission to file additional written
statement is that he is born deaf and dumb and he could not
instruct his counsel properly with total pleadings. It is observed
that defendant No.1 is working in Medak Artillery Factory for
Defence under Central Government. It is not the case of the
defendant No.1 that he is an illiterate. It is not even the case
8 (2002) 2 SCC 445
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of the defendant No.1 that he is blind and that he could not
read the averments of the written statement as prepared by his
counsel. As seen from the written statement, the defendant
No.1 has subscribed his signature verifying that the facts
mentioned in the written statement are true and correct to the
best of his knowledge. Thus, it indicates that the defendant
No.1 has subscribed his signature by only after understanding
the averments as stated in the written statement. In such
circumstances, he cannot contend that he could not instruct his
counsel properly about the total pleadings. Therefore, in view of
the facts and circumstances of the case, the reason assigned by
the defendant No.1 is appearing to be not genuine.
17. In view of the above discussion, this Court is of the
considered opinion that the learned trial Court judge ought not
to have accorded permission to defendant No.1 to file additional
written statement, more particularly when the averments in the
additional written statement are destructive of the original plea
taken in the written statement and also the pleadings of the
plaintiff i.e., mutually destructive of each other and more
specifically when the petition under Order VIII Rule 9 of the CPC
is filed after commencement of trial. The power under Order
VIII Rule 9 of the CPC is to be used only in exceptional cases
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and for reasons recorded in writing and cannot be exercised by
the defendant as a matter of right. No plausible explanation is
offered by the defendant No.1 as to why he filed such additional
written statement after four years from the date of filing written
statement. Therefore, the impugned order is liable to be set
aside.
18. Accordingly, the Civil Revision Petition is allowed by
setting aside the impugned order dated 22.01.2019 in
I.A.No.1274 of 2018 in O.S.No.1307 of 2013 on the file of
learned VIII Additional District Judge, Ranga Reddy District and
thereby, the petition in I.A.No.1274 of 2018 in O.S.No.1307 of
2013 is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 29.11.2023
AS
