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Ponnuchamy v. N.Singaravelu - Civil Revision Petition (PD) (MD) No.866 of 2005  RD-TN 2336 (16 July 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16/07/2007
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Civil Revision Petition (PD) (MD) No.866 of 2005 and
C.M.P.(MD)No.6690 of 2005
4. Dhanabal ... Petitioners
N.Singaravelu ... Respondent Prayer
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order passed in I.A.No.111 of 2005 in O.S.No.127 of 2004 on the file of the learned Principal District Munsif, Valangaiman at Kumbakonam dated 06.04.2005. For Petitioners ... Mr.M.R.S.Prabhu
For Respondent ... Mr.T.V.Sivakumar
The petitioners who are the defendants in O.S.No.127 of 2004, on the file of the learned Principal District Munsif, Valangaiman, Kumbakonam, have come forward with this revision challenging the order dated 06.04.2005 made in I.A.No.111 of 2005. The respondent is the plaintiff.
2. The respondent has filed the above suit for declaration of title and for recovery of possession of the suit property and also for mean profits. The first defendant in his written statement has disputed the title of the plaintiff and he has stated that the suit property was purchased by him by means of a registered sale deed dated 06.02.1985 and by virtue of the said sale deed, he became the owner of the same and on that basis, he has been in possession and enjoyment of the suit property.
3. During the trial of the case, the defendants have filed I.A.No.127 of 2004, requesting the Court to receive additional written statement. The said I.A., was resisted by the respondent and finally, it was dismissed by the learned Principal District Munsif. Challenging the said order, this revision has been filed.
4. The lower Court has dismissed the said application on the ground that in the additional written statement, an inconsistent plea has been taken which cannot be permitted at all. The lower Court has further stated that, in the original written statement, the first defendant has pleaded that he has been all along in possession of the property right from the year 1985 as absolute owner by virtue of the said sale deed, whereas, in the additional written statement, it has been stated that he has perfected his title by adverse possession, which according to the lower Court is not permissible. The lower Court has expressed that since, the trial is at the stage of examination of the defendants side witnesses, if the additional written statement is allowed to be received, then, it would not be possible for the plaintiff to rebut the allegations made in the additional written statement by letting sufficient evidence.
5. The learned counsel for the petitioners would contend that while deciding the question whether to receive the additional written statement or not, it is not open for the Court to go into the merits of the additional written statement and to give a finding on the same. He would further contend that being the defendants, the petitioners can take such in-consistent pleas by filing additional written statement which is permissible under law. He would further submit that, in the judgment of the Hon'ble Supreme Court reported in 2006 (5) Supreme 943, (Baldev Singh & others, etc., v. Manohar Singh & another etc.,) the Hon'ble Supreme Court has held that the Courts should be liberal in receiving the additional written statement with a view to avoid multiplicity of proceedings and to render complete justice to the parties.
6. Per contra, the learned counsel for the respondent would submit that the first defendants is not entitled to contend that he has perfected his title by means of adverse possession having stated that he has been in possession in the capacity of the owner of the property from the year 1985 on wards and on the basis of the sale deed and therefore, the additional written statement should not be received in evidence.
7. I have considered the rival contentions.
8. While approaching the issues involved in this case, the principles laid down by the Hon'ble Supreme Court in the Judgment reported in 2006 (5) Supreme 943 (cited supra), is to be remembered wherein, the Hon'ble Supreme Court has stated that, unless serious injustice or irreparable loss is caused to the other side, the Court should be very liberal in allowing the amendment of pleading in such manner and on such terms as it appears to the Court just and proper. The Hon'ble Supreme Court has further held that 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 the 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 later case. Keeping the above principles laid down by the Hon'ble Supreme Court, I am of the considered view that the additional written statement which is sought to be filed to add a new defence in the present case, would not be prejudicial to the plaintiff.
9. The learned counsel for the petitioners would rely on the Judgment of this Court reported in 2004(4) L.W. 699 (Shanmugam v. Vijayarangam & another) wherein, this Court has held that the trial Court is expected only to consider the bona fide in filing the petition and the Courts are expected to not to go to the extent of discussing the merit of the additional written statement filed by the defendant at that stage itself. The learned Judge, in the said Judgment has held that, it would be improper on the part of the trial Judge to go into the merits of the additional written statement. In the case on hand, the learned Principal District Munsif, has gone into the merits of the defence taken in the additional written statement which in my view also is improper.
10. The learned counsel for the petitioners would further rely on the Judgment of this Court reported in 1999 (3) CTC 52, (Subramanian and three others v. Jayaraman) wherein, it has been held that subsequent pleadings by defendant even though contradictory to the original written statement, could be taken in the form of additional written statement.
11. Though in the case on hand, as rightly pointed out by the learned counsel for the respondent, an inconsistent plea has been taken in the additional written statement, that cannot be a ground to refuse the filing of the additional written statement. The argument of the learned counsel for the respondent that the first defendant cannot be permitted under law to contend that he has perfected his title by means of adverse possession in view of his earlier pleadings that he was in continuous possession as absolute owner, cannot be considered at this stage while deciding the question of receiving the additional written statement. It is a valid question to be raised at the appropriate stage of the trial and it is for the trial Court to decide whether the first defendant has perfected his title by adverse possession or not as requested under law.
12. The one another ground on which the lower Court has dismissed the said application is that, the plaintiff could be prejudiced if the additional written statement is received at that stage since already the plaintiff has given evidence and also completed evidence on his part and he may not have a chance to rebut and to lead evidence with reference to the stand taken in the additional written statement. It may be true that the plaintiff would be deprived of leading any evidence in respect of the additional written statement. But, on that ground alone, the additional written statement cannot be refused to be received. At the same time, the interest of the plaintiff also is to be protected by affording sufficient opportunity to him to lead further evidence on his part in respect of the stand taken in the additional written statement.
13. For all these factual and legal positions, I am of the considered view that the findings of the lower Court is not sustainable under law and the order of the lower Court is liable to be set aside.
14. In the result, the order passed by the learned Principal District Munsif, Valangaiman, Kumbakonam dated 06.04.2005, made in I.A.No.111 of 2005 in O.S.No.127 of 2004, is set aside. I.A.No.111 of 2005 shall stands allowed. It is made clear that the lower Court shall give liberty to the respondent to let in further evidence if he so advised in respect of the stand taken in the additional written statement.
15. With the above direction, the civil revision petition is allowed. No costs. Consequently, connected C.M.P is closed.
The Principal District Munsif,
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