@JUDGMENTTAG-ORDER
S. Rajeswaran, J.@mdashThis Civil Revision Petition has been filed against the order and decree dated 01.04.2008 passed in I.A. No. 227 of 2008 in O.S. No. 127 of 2005 on the file of the Subordinate Court, Dharapuram.
2. This Civil Revision Petition has been filed against the order and decree dated 01.04.2008 passed in I.A. No. 228 of 2008 in O.S. No. 127 of 2005 on the file of the Subordinate Court, Dharapuram.
3. These two Revision Petitions have been filed by the Defendants in O.S. No. 127 of 2005.
4. O.S. No. 127 of 2005 was filed by the Respondent/Plaintiff on the file of the Sub Court, Dharapuram, for partition of the suit schedule properties. Written Statement was filed by the first Defendant and the same was adopted by the second Defendant. Thereafter, an Additional Written Statement was filed by the first Defendant, which was also adopted by the second Defendant.
5. While so, the Defendants filed two applications namely, I.A. No. 227 of 2007 to seek leave of the Court to file an Additional Written Statement and I.A. No. 228 of 2007 to re-open the case for the purpose of filing the additional written statement and to let in evidence on their side. The said two applications were opposed by the Respondent/Plaintiff by filing counters. The Trial Court by order dated 01.04.2008 dismissed these two applications. Aggrieved over the same, the Defendants have filed the above two Revision Petitions.
6. The learned Counsel appearing for the Petitioners/Defendants would submit that though they had already filed a Written Statement and an Additional Written Statement through the previous counsel, the present counsel, who has been engaged by them, has pointed out certain technical points which are required to be elicited in the written statement. In fact, these details could not be furnished at that time when the Written Statement and the Additional Written Statements were filed earlier. It is their case that in the pre-suit Notice, the Plaintiff had claimed 1/4th share in the suit properties whereas in the suit, she has claimed only 1/3rd share. Besides that, the description of the properties and the S. Nos. are also not correctly given thereto. She is also not in joint possession and therefore, the Court fee paid also is not correct. Further, the Plaintiff filed yet another suit in O.S. No. 75 of 2007 before the Sub Court, Tirupur, for partition and separate possession impleading these Defendants as parties in the suit. Suppressing the said suit, the Plaintiff has filed the present suit and therefore, this Court has No. jurisdiction to entertain the present suit. Further, it is stated that the Defendants have also filed a Transfer Application before this Court for transfer of both the suits to be tried in one single court. Hence, according to the Defendants, these material facts have to be brought on record by filing an additional written statement for effective and proper adjudication of the suit. Hence, the above two applications are filed and the same ought to have been allowed by the Trial Court.
7. Per contra, the learned Counsel appearing for the Respondent/Plaintiff would submit that these two applications are highly belated and filed at the stage when the entire trial was over and after completing the evidence on both sides. Further, the suit has been posted for arguments. Hence, by filing these two applications at this stage, the Defendants have exhibited their clear intention to protract the proceedings. Therefore, there are No. bonafides on the part of the Defendants in filing these two applications. It is also pointed out by the learned Counsel that the Transfer C.M.P. Filed by them, namely, Tr.C.M.P. No. 224 of 2007 to transfer the present suit to the Sub Court, Tirupur was allowed by this Court. The Plaintiff challenging the said order filed SLP before the Hon''ble Supreme Court in SLP No. 3181 of 2008 and the Hon''ble Supreme Court has stayed the order of the High Court and directed the parties to proceed with the suit in the same Court.
8. The Trial Court in due consideration of the submissions made on either side dismissed the above two applications on the ground that when the suit was posted for arguments after completion of evidence on either side, these two applications have been filed. The Trial Court also referred to the order passed by the Hon''ble Supreme Court and the directions given therein to proceed with the suit in the same Court.
9. Aggrieved by the orders of the Trial Court dated 01.04.2008, the Defendants in the suit filed the above Civil Revision Petitions under Article 227 of the Constitution of India.
10. Heard the learned Counsel for the revision Petitioners and the learned Counsel appearing for the Respondents and I have also gone through the documents made available on record.
11. The learned Counsel for the revision Petitioners, relying on the following judgments:
1
2.
3. 2007 (3) CTC 554 (S.Suresh v. Sivabalakannan and Ors.)
4.
vehemently contended that the trial Court has committed an error in dismissing the applications, as courts should be liberal in permitting the party to raise an additional plea at any stage of the suit so as to render complete justice.
12. Per contra, the learned Counsel for the Respondent/Plaintiff submits that it is case wherein the Court has correctly dismissed the applications, as already one additional written statement was filed and what was now sought to be filed is the second additional written statement, after changing the previous counsel, which goes to show that the only intention of he Defendants is to drag on the proceedings and to see that the Plaintiff would not get justice.
13. I have considered the rival submissions carefully with regard to facts and citations.
14. It is not in dispute that the suit is for partition and written statement was already filed and an additional written statement was also allowed to be filed. Now, the above two applications have been filed by the Defendants for the aforesaid reliefs when the suit was posted for arguments. It is No. doubt true that the courts should be liberal in permitting the parties to raise additional pleas and in fact, courts should be more liberal in permitting the Defendants to file additional written statements. The reason given by the revision Petitioners/Defendants for filing these applications at the belated stage is that, they engaged a new counsel and the new counsel after perusing the records informed them that some technical points should have been stated in the written statement already filed by them. Since the first Defendant was aged, he was not able to give the entire particulars to his previous counsel while filing the written statement as well as the additional written statement. Hence it has become necessary to file an additional written statement.
15. I am of the considered view that the above said reasons are hardly sufficient to permit the Defendants to file yet another additional written statement especially when the suit was posted for arguments. Further, they filed a transfer petition to transfer the present suit to Sub Court, Tirupur and the same was allowed by this Court. Against the order passed in the transfer petition, the Respondent/Plaintiff filed SLP before the Hon''ble Supreme Court and the Hon''ble Supreme Court on 28.01.2008 issued notice and granted stay and further directed the trial Court at Dharapuram to continue the hearing of the suit. Only after such an order has been passed by the Hon''ble Supreme Court to continue the hearing of the suit, the revision Petitioners/Defendants filed the present applications seeking leave to file additional written statement and also to re-open the suit to let in evidence. In view of the above conduct of the revision Petitioners/Defendants, I am not inclined to permit them to file one more additional written statement and if liberal approach and leniency is shown at this stage, as rightly pointed out by the learned Counsel for the Respondent/the Plaintiff, the Plaintiff would be put to irreparable injury and infact it would be a premium on the conduct of the revision Petitioners/Defendants.
16. Before concluding, it is necessary to go through the judgments referred to by the learned Counsel for the revision Petitioners/Defendants.
17. In 2007 (3) CTC 554 (cited supra), I have held as follows:
16. From the above decisions, it is very clear that leave to file additional written statement is to be granted liberally except when the Defendant raises a mutually destructive pleas and when he tries to introduce altogether a new case.
18. In the additional written statement, the revision Petitioner stated that he purchased the suit schedule property from one Rahini by a sale deed dated 17.04.2000 and the said Rahini filed O.S. No. 90 of 2000 against one Poonalagu and in that suit the first Respondent herein (first Plaintiff in the Suit) was examined as a witness on the side of the Poonalagu and his evidence was rejected by the court in O.S. No. 90 of 2000. Similarly the first Respondent herein deposed as a witness in O.S. No. 108 of 2000 and in that suit also, the first Respondents evidence was not accepted by the court. The revision Petitioner wanted to plea the above narrated averments only by way of subsequent pleading to contend that the case of the first Respondent as first Plaintiff in the present suit was already pleaded by him as a witness in two earlier suits and the courts did not accept his evidence.
19. Reading of the additional statement makes it very that the revision Petitioner only wants to explain the case further by subsequent pleadings and the subsequent pleadings are in fact in consonence with his earlier pleadings. If cannot be said that be raised a mutually destructive plea nor it can be said that altogether a new case was put forward by him in the subsequent pleadings.
18. In
6. In yet another decision in A. Perumal Raj v. B.Rajendran (2007) 4 MLJ 186: 2007 (2) LW 938, a similar issue came up for consideration before this Court, where it was alleged that the intention behind the petition was only to drag on the proceedings and that the averments made in the additional written statement were of No. relevance to the issue involved in the suit. In the above reported judgment, the suit is for recovery of money on the basis of the promissory note and the petition to receive the additional written statement was filed after examination of the defence witness (DW.1). On the objection made by the Plaintiff that the petition for receiving the additional written statement had been filed belatedly, the lower Court dismissed the above said petition. This Court, after considering the following decisions in Kallathal v. Murugathan and Ors. 2006 (5) CTC 580, Chandra and Ors. v. Ranganathan 2005 (4)CTC 55;
7. The object of filing of additional written statement is to supply what might have been omitted in the written statement filed earlier and the additional written statement can be allowed, if it is not likely to cause prejudice to the Plaintiff. The Court should grant permission to the Defendant for filing subsequent pleadings if they are so relevant to prove the facts placed before the Court by the Defendant, which cause No. prejudice to the Plaintiff even in the absence of any claim or set off or counter claim. In the instant case, the plea of the Petitioner was denial of execution of the promissory note and the averments made in the additional written statement that he was away on the date, when the said promissory note was alleged to have been executed is only supplementary and does not introduce a new case other than what was pleaded earlier. By filing an additional written statement to supplement the pleadings, No. prejudice would be caused to the Plaintiff and therefore, the lower Court ought not to have dismissed the petition on the ground of delay.
19. In 2008 (2) LTC 523 (cited supra), the Hon''ble Supreme Court held as follows:
8. Order VIII Rule 6A of the CPC reads as under: "6-A. Counter-claim by Defendant - (1) A Defendant in a suit may, in addition to his right of pleading a set- off under Rule 6, set up, by way of counter-claim against the claim of the Plaintiff, any right or claim in respect of a cause of action accruing to the Defendant against the Plaintiff either before or after the filing of the suit but before the Defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not;
(Emphasis supplied)
9. Order VI Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the proviso appended thereto (which is not applicable in the instant case), such applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an application for amendment of plaint. Order VIII Rule 9 again, subject to the statutory interdict enables a Defendant to file additional pleadings.
10. The provision of Order VIII Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counter claim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the Defendant has raised his defence. Respondent in his application for amendment of written statement categorically raised the plea that the Appellants had tresspassed on the lands, in question, in the summer of 1998. Cause of action for filing the counter claim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of Sri Ryaz Ahmed (supra) is based on the decision of this Court in
11. Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed (supra). In that case, the proposed amendment by the Defendant was allowed to be filed as he wanted to make a counter-claim by way of a decree for grant of mandatory injunction to remove the built up area on the disputed portion of land. It was therein held that instead of driving the Defendant to file a separate suit therefor, it was more appropriate to allow the counter-claim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counter-claim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed.
12. Baldev Singh (supra) is not an authority for the proposition that the Court while allowing an application for amendment will permit the Defendant to raise a counter claim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6-A. Some of the decisions of this Court in No. uncertain terms held it to be impermissible. See
20. In
8. It is well settled by various decisions of this Court as well as the High Courts in India that Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 P.C. 249) in which the Privy Council observed: (IA pp.216-17)
All rules of courts are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless No. power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
(Emphasis supplied)
9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the CPC deals with amendment of pleadings which provides that 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. From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the CPC consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the CPC (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, the Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the CPC is concerned, we shall deal with it later.
11. A bare perusal of the order rejecting the application for amendment of the written statement indicates that while rejecting the application for amendment of the written statement, the High Court as well as the trial court based their decisions mainly on three grounds. The first ground was that since the Appellants had made certain admissions in the written statement, its amendment cannot be allowed permitting the Appellants to withdraw their admission made in the same. Secondly, the question of limitation cannot be allowed to be raised by way of an amendment of the written statement and lastly inconsistent pleas in the written statement cannot also be allowed to be raised by seeking its amendment.
15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the Appellants in their application for amendment of the written statement, excepting the plea taken by the Appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the Plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily No. counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the CPC must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.
21. A close scrutiny of the above referred judgments would make it very clear that they were all rendered on a different set of facts and therefore the revision petitions cannot seek support from them and in fact, in none of the judgments referred to by the learned Counsel for the revision Petitioners, the Defendants sought permission to file another additional written statement, after filing an additional written statement already.
22. It is trite law that the law laid down by the Higher Courts could not be applied to the other cases without going through the facts and circumstances of both the cases. If the facts and circumstances of the cases are different, it is not possible to import and apply a decision which was given in a different set of facts. Therefore, these judgments are not at all helpful to the case of the revision Petitioners herein.
23. In the result, I find No. merits in the above two Civil Revision Petitions and accordingly, both are dismissed. No. costs. Consequently, connected miscellaneous petitions are also closed.
