@JUDGMENTTAG-ORDER
R. Banumathi, J.@mdashThis Revision arises out of the Order of Second Additional District Munsif (incharge of I Additional District Munsif),
Thirukovilur in I.A.No. 533 of 2000 in O.S.No. 998 of 1991 dated 9.10.2000 allowing the application under Order VIII, Rule 9 C.P.C. on
payment of costs of Rs. 500/- thereby ordering receipt of additional written statement. Plaintiff is the Revision Petitioner.
2. O.S.No. 998 of 1991:- Plaintiffs are daughters and son of D1 - Sadaiyandi. The Plaintiffs have filed this suit to cancel the Sale Deed dated
27.11.1986 executed by D1 in favour of D2 . According to the Plaintiffs, the recitals in the said Sale Deed relating to the consideration and
antecedent debts are not true. The promissory note and the other debts mentioned there on are not existing debts and the recitals have been
incorporated to show as if the Sale Deed has been executed for consideration. Alleging that the Sale Deed is not binding on them and seeking to
cancel the Sale Deed, the Plaintiffs have filed the suit for partition claiming their 3/4 share in the suit properties.
3. The Second Defendant filed the written statement contending that D1 had purchased the property in the name of his wife Mangai Ammal. D1
sold the said property to D2 under the Sale Deed dated 27.11.1986 for discharging the antecedent debts. Though the Sale Deed was obtained in
the name of Mangai Ammal, the patta continues to be in the name of D1 and D1 was in possession and enjoyment of the property by paying kists
etc. The first Defendant had executed Mortgage Deed dated 28.1.1986 to one Subramaniam for meeting the expenses of maintaining the minors-
Plaintiffs and for discharging other antecedent debts. D1 had sold the property to the second Defendant for valid and binding consideration of Rs.
13,000/- by the Sale Deed dated 27.11.1986. The Plaintiffs continue to be under the care and custody of the first Defendant. When D1 is alive,
the maternal uncle cannot be the lawful guardian for the Plaintiffs. The Sale Deed executed by D1 for meeting the family expenses and for
discharging the antecedent debts, is binding upon the Plaintiffs and the Plaintiffs cannot seek for partition without setting aside the Sale Deed.
4. The trial commenced. On behalf of the Plaintiffs, five witnesses had been examined and cross examined. At that stage, D2 has filed I.A.No. 533
of 2000 for filing the additional written statement. According to the second Defendant, only recently, he was able to trace out an Agreement of
Sale between the first Defendant and Annapoorani Ammal wherein the vendor Annapoorani Ammal had received consideration of Rs. 5000/-
from D1 and agreed to receive the balance consideration of Rs. 40/- within four months i.e. Between 11.6.1978 and 11-12-1978 and agreed to
get the Sale Deed. Thereafter, on 16.6.1978, D1 paid Rs. 40/- to Annapoorani Ammal and she has agreed to execute the Sale Deed in favour of
D1. According to the second Defendant, the same had been omitted to be pleaded earlier in the written statement. Hence, D2 has filed this
application under Order VIII, Rule 9 C.P.C. praying to receive the additional written statement.
5. Resisting the application, the Plaintiffs have filed elaborate counter statement contending that the pleadings earlier put forth in the written
statement and the pleadings in the additional written statement are contradictory. It is further alleged that there was pre-suit notice on 7.8.1990
wherein D2 and his brother had sent reply and in the reply also, the second Defendant had not stated anything about the Agreement of Sale (dated
11.6.1976) between Annapoorani Ammal and D1.
6. Denying any such Agreement of Sale between Annapoorani Ammal and D1, the Plaintiffs have filed the counter statement alleging that the
application had been filed only to fill up the lacuna in the evidence. Since on behalf of the Plaintiffs five witnesses had been examined and cross
examined, the application filed at that stage to receive the additional written statement is highly belated and cannot be entertained.
7. Upon consideration of the averments in the affidavit and in the counter statement, the learned District Munsif found that adequate opportunity is
to be afforded to both parties and they are to be heard in full. Finding that pleadings necessary for determination of the issue is to be accepted, the
learned District Munsif held that there is no inconsistency between the earlier plea and the new plea and on those findings allowed the application
under Order VIII, Rule 9 C.P.C.
8. Aggrieved over the allowing of the application under Order VIII, Rule 9 C.P.C., the Plaintiffs have preferred this Revision. The learned counsel
for the Revision Petitioner has contended that the additional written statement had been belatedly filed after the trial had commenced. It is
submitted that when five witnesses had been examined and cross examined onbehalf of the Plaintiffs, the trial court was not justified in receiving the
additional written statement after commencement of the trial. It is further contended that by allowing the petition to file additional written statement,
much prejudice had been caused to the Plaintiffs and the evidence adduced and seeks to set aside the impugned order.
9. The short point falling for consideration is whether the additional written statement is not to be received on the ground of delay and whether the
impugned order suffers from any irregularity warranting interference.
10. Admittedly, on behalf of the Plaintiffs five witnesses had been examined and cross examined. At that stage, application under Order VIII, Rule
9 C.P.C. has been filed to receive the additional written statement. Earlier, the written statement had been filed on 8.3.1993. I.A.No. 309 of 2000
was filed to implead Annapoorani Ammal as the party to the suit for which, the second Defendant has filed the counter. In the counter statement,
the second Defendant had alleged that vendor Annapoorani Ammal is a necessary party. If really, there had been any such Agreement of Sale on
11.6.1998 between Annapoorani Ammal and D1, the second Defendant would have stated about the same; but that was not to be so.
11. The application under Order VIII, Rule 9 C.P.C. had been filed belatedly. As stated earlier, on behalf of the Plaintiffs, five witnesses had been
examined and cross examined. At that stage, nearly seven years after the filing of the written statement, the second Defendant had filed I.A.No.
533 of 2000 under Order VIII, Rule 9 C.P.C. to receive additional written statement. When the evidence on the side of the Plaintiffs had nearly
completed, the second Defendant was not justified in filing the application to receive the additional written statement. If the additional written
statement is entertained at this stage, the Plaintiffs would be deprived of the opportunity in meeting the facts and pleadings put forth in the additional
written statement.
12. The object of the law of pleadings is that the Court and the respective parties, should fully know of the case before the parties go in for trial, so
that, the trial may proceed in that well defined channel. Now, by putting forth new set of facts, after the Plaintiff''s evidence is closed, the
Defendants are only attempting to divert the process of trial. If the application is allowed, there would be no remedy to the Plaintiff to adduce
proper evidence, thereby, meeting the defence plea set forth.
13. In a similar case, where evidence of Plaintiffs was over, where the application was filed under Order VIII, Rule 9 C.P.C. to receive additional
written statement, that application was dismissed by the lower Court which was confirmed by this Court in the decision reported in 2000,1, L.W.
420 (H.Ramachandra Rao - v. - A. Mohideen) holding that when the entire evidence of Plaintiff was over, fresh pleadings under Order VIII, Rule
9 C.P.C. cannot be allowed. Justice S.S.Subramani has held thus:-
In this case, entire evidence of Plaintiff is over. If fresh pleadings are allowed to take place, Plaintiff will be put to hardship and entire case will
have to be reopened. First written statement was filed in the year 1992 and it was seven years after leave is sought for to file additional written
statement. Why petitioner waited for these seven years for filing the application is nowhere stated in the affidavit. Petitioner cannot contend or insist
that Court must receive additional pleadings as of right. Permission has to be obtained under Order 8, Rule 9 of code of Civil Procedure. Under
what circumstances leave is to be granted and how the discretion is to be exercised depend on the facts and circumstances of each case. In all
such cases, party who seeks leave has to explain as to why this contention was not raised in the earlier pleadings. While exercising discretion, the
Court will consider the conduct of the party, stage of the litigation, delay that has occasioned, how far the opposite party will be put to hardship
etc.
The above observation squarely applies to the case in hand where the Defendant has filed the additional written statement nearly seven years after
the filing of the earlier written statement.
14. The stage when the Plaintiffs evidence has been closed, the second Defendant is not justified in filing the application to receive additional
written statement. The reason stated in the affidavit that the Agreement of Sale was not traceable earlier is not convincing. The lower Court has not
taken note of the stage of the litigation and the delay that has occasioned and the hardship to which the Plaintiffs would be subjected. The
impugned order suffers from material irregularity and is to be set aside.
15. Therefore, the Revision Petition is allowed and the impugned Order of the Second Additional District Munsif (incharge of I Additional District
Munsif), Thirukovilur in I.A.No. 533 of 2000 in O.S.No. 998 of 1991 dated 9.10.2000 is set aside. The trial Court is directed to dispose the suit
in O.S.No.998 of 1991 expeditiously in accordance with law. In the circumstances of the case, there is no order as to costs. Consequently,
C.M.P. No. 18297 of 2000 is closed.
