Nisha v. Ramadas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939** **OP(C).No. 2684 of 2017 (O)** **--------------------------O.S.195/2014 ON THE FILES OF MUNSIFF COURT, OTTAPALAM** **PETITIONER(S): -------------** **NISHA, 32 YEARS,D/O RAVEENDRAN, KOONGATTUPARAMBIL HOUSE, PANAMANNA SOUTH, KANNIYAMPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, REPRESENTED BY POWER OF ATTORNEY AGENT RAVEENDRAN,AGED 62 YEARS, S/O PALAN,KOONGATTUPARAMBIL HOUSE, PANAMANNA SOUTH, KANNIYAMPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** **RESPONDENT(S): --------------** **RAMADAS, AGED 70 YEARS,S/O LATE AYYAPPAN, APSARA VILLA, AMBIKA NAGAR, AKKATHETHARA P.O., PALAKKAD.** **BY ADVS. SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2684 of 2017 (O)** ## **---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**TRUE COPY OF THE PLAINT IN O.S.195/2014 ON THE**| ||**FILES OF SUB COURT,OTTAPALAM**| |**EXHIBIT P2**|**TRUE COPY OF THE WRITTEN STATEMENT IN OS.195/2014**| ||**ON THE FILES OF MUNSIFF COURT, OTTAPALAM**| |**EXHIBIT P3**|<br>**TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED**| ||**8.8.2017 FILED BY DEFENDANT IN O.S.NO.195/2014 ON**| ||**THE FILES OF MUNSIFF COURT,OTTAPALAM**| |**EXHIBIT P4**|<br>**TRUE COPY OF THE APPLICATION IN I.A.NO.1538/2017 IN**| ||**O.S.195/2015 ON THE4 FILES OF MUNSIFF**| ||**COURT,OTTAPALAM**| |**EXHIBIT P5**|<br>**TRUE COPY OF THE COUNTER STATEMENT DATED 9.8.2017**| ||**FILED BY THE PLAINTIFF IN I.A.NO.1538/2017 IN**| ||**O.S.NO.195/2015 ON THE FILES OF MUNSIFF**| ||**COURT,OTTAPALAM.**| |**EXHIBIT P6**|<br>**TRUE COPY OF THE ORDER DATED 19.8.2017 IN**| ||**I.A.NO.1538/2017 IN O.S.NO.195/2015 ON THE FILES OF**| ||**MUNSIFF COURT,OTTAPALAM.**| ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** ## **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K. NARENDRAN, J. ----------------------------------------------O.P(C) No.2684 of 2017 ----------------------------------------------Dated this the 19[th] day of September, 2017** ## **J U D G M E N T** The petitioner is the defendant in O.S.No.195/2014 on the file of the Munsiff's Court, Ottapalam. The said suit is one filed by the respondent herein for return of advance money. The petitioner has approached this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P6 order dated 19.8.2017 of the said court, whereby I.A.No.1538/2017 filed by the petitioner under Order VIII, Rule 9 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') seeking an order to receive additional written statement stands rejected. 2. I heard the learned counsel for the petitioner/defendant and also the learned counsel for the respondent/plaintiff. 3. The plaintiff filed O.S.No.195/2014 before the court below seeking a decree for return of advance money based on a sale agreement dated 23.12.2011 alleged to have been executed between the plaintiff and the defendant, in respect of plaint schedule property having an extent of 4 cents situated in Survey No.139/8B in Ottappalam Village with a residential building situated therein. In the said agreement sale consideration is shown as 7.5 lakhs and according₹ O.P(C) No.2684 of 2017 :-2-: to the plaintiff, he had paid 6.5 lakhs as advance.₹ 4. In the written statement, the defendant denied the execution of the sale agreement dated 23.12.2011, by contending that it is a fabricated one. After completion of pre-trial steps, the suit was listed for trial. The plaintiff's evidence was recorded on 3.8.2017 and it was closed on that day. Thereafter, the case was posted to 8.8.2017 for defendant's evidence. On that day, the defendant filed I.A No.1538/2017, an application under Order VIII, Rule 9 of the Code seeking an order to permit him to file additional written statement. The additional written statement filed along with the said application was for the limited purpose to add a new ground of defence that, as on the date of the alleged sale agreement, the plaint schedule property was not worth enough for 7.5 lakhs. In the additional written statement, it₹ is contended that during the year 2011, the maximum value of the plaint schedule property, which was constructed under a scheme for homeless persons, could only be 3 lakhs. ₹ 5. The plaintiff filed objection to the said interlocutory application, contending that the matters with respect to which the additional written statement is filed were known to the defendant at the time of filing of the written statement and that, no change in circumstances or any subsequent developments have occurred for filing O.P(C) No.2684 of 2017 :-3-: such an additional written statement. Therefore, the plaintiff prayed for dismissal of I.A.No.1538/2017. 6. The court below, after considering the rival contentions, dismissed the said interlocutory application by Ext.P6 order dated 19.8.2017, stating that the additional facts stated are facts which were known to the defendant at the time of filing of the written statement itself, and no subsequent developments have taken place. The evidence of the plaintiff was already recorded on 3.8.2017 and the defendant filed I.A.No.1538/2017 only on 8.8.2017, when the suit was listed for her evidence. 7. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P6 order passed by the court below, whereby I.A.No.1538/2017 filed by the defendant under Order VIII, Rule 9 of the Code to accept additional written statement stands dismissed. 8. Order VI, Rule 17 of the Code deals with the amendment of pleadings. Order VI, Rule 17 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, 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 O.P(C) No.2684 of 2017 :-4-: of determining the real questions in controversy between the parties. However, going by the proviso to the said Rule, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 9. Order VIII, Rule 9 of the Code deals with subsequent pleadings. Order VIII, Rule 9 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court and upon such terms as the court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. 10. A combined reading of the provisions under Order VI, Rule 17 and Order VIII, Rule 9 of the Code make it explicitly clear that, while the power of the court to permit amendment of pleadings is restricted by the proviso to that Rule, whereby such request made after the trial has commenced shall not be allowed unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. On the other hand, going O.P(C) No.2684 of 2017 :-5-: by the provisions under Order VIII, Rule 9, leave of the court, on such terms as it thinks fit, is required for presenting pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim. But, the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. ## 11. In **T.R.Govindasamy v. T.R.Natarajan (AIR 2005** **Madras 21)** , a decision relied on by the learned counsel for the petitioner, a learned Judge of the Madras High Court held that, Order VIII Rule 9 of the Code gives wide power to courts to give permission to the defendant to file additional written statement at any time, but fixing the maximum days for presenting the same and that, there is no other restriction in granting leave for the defendants to file additional written statement. 12. In **T.R.Govindasamy's case (supra)** , the suit was one for partition. In the plaint, the plaintiffs traced title to the suit property to the original owners, viz., Narayanaswamy Naidu and Perumal Naidu, who are brothers. As per the plaint averments, the owners of the property settled the same in favour of Narayana Naidu and Rangaswamy Naidu. The plaintiffs, tracing the succession under them, O.P(C) No.2684 of 2017 :-6-: have filed the suit for partition of their 3/7[th] share in the suit property. The defendants filed written statement in the year 2000, wherein they have admitted that the suit property originally belonged to Narayanaswamy Naidu and Perumal Naidu and that, they had executed a registered settlement deed dated 20.7.1959 in favour of Narayana Naidu and Ayyammal, which is the source of title for the plaintiffs, as well as for some of the defendants. The defendants admitting the original title in favour of Narayanaswamy Naidu and Perumal Naidu, further conceding that they had executed a settlement deed, would contend that Ayyammal was given only a limited life time of enjoyment towards her maintenance, which right had enlarged under Section 14 (1) of the Hindu Succession Act, in addition to some other defence also. On the basis of the above averments, parties went on trial before the trial court and the first plaintiff entered into the box on 7.7.2003 and his examination was over on 21.7.2003. At this stage, the contesting defendants 1, 2 and 4 filed a petition under Order VIII, Rule 9 of the Code, seeking permission of the court, to file an additional written statement, wherein they have questioned the capacity of the settlers, under the settlement deed dated 20.7.1959, on the ground that, since the property originally belonged to two brothers as ancestral property or coparcenary property, as the case may be, they had no right to O.P(C) No.2684 of 2017 :-7-: settle the property and therefore, the settlement deed is not legally valid. The plaintiffs opposed the attempt of the defendants to introduce such a plea by way of additional written statement by filing a detailed counter, contending that the averments in the additional written statement are opposite to the original written statement, which aims to take away the right conferred upon the plaintiffs on the basis of admission. The trial court, upon consideration of the rival contentions, dismissed the application holding that the contesting defendants should not be permitted to file additional written statement, since they sought to introduce a new case in the additional written statement, which is quite contrary to the original written statement, thereby nullifying the admission already made in the written statement. The said order was under challenge in the Civil Revision Petition filed before the High Court of Madras. After considering the rival contentions, with reference to the avernments in the original written statement and the additional written statement sought to be filed, the High Court found that in the additional written statement also the defendants have not denied the execution of the settlement deed, its enforcement and the subsequent transaction in respect of the same, between the parties. By way of clarification, based on legal position, now they want to say that the suit property belonged to the above said two persons as ancestral and O.P(C) No.2684 of 2017 :-8-: coparcenary property and the position being so, the settlement deed executed by them is not legally valid. When PW1 was in the box, in cross-examination, he made certain admission, based on which the defendants want to say that the suit property originally belonged to Narayanaswamy Naidu and Perumal Naidu as their ancestral property and therefore, they had no absolute right to execute a valid settlement deed. The High Court found that, no where in the additional written statement, the defendants have denied the execution of the settlement deed by Narayanaswamy Naidu and Perumal Naidu. It is not their case that they want to delete the averments in the original written statement. Those averments are also available for defence, in addition to introducing some more defence. In fact, admitting the execution of the settlement deed and questioning its validity, based on legal position, supported by the nature of property, as admitted by PW1, the stand now sought to be taken by the defendants, by way of additional written statement, could not be described as an inconsistent plea or it will not have the effect of erasing any right conferred upon the plaintiffs by the original written statement. All the defence, as such are available and the parties could agitate the same before the trial court, since the suit is in the beginning stage of the trial. The High Court found that, the additional written statement is in the nature of giving details, regarding O.P(C) No.2684 of 2017 :-9-: the character of the property and in that process, legal position comes into play and that is why, they want to introduce the same also, which in effect, may invalidate the settlement deed to some extent, which should be decided only at the time of the trial. Therefore, by the filing of the additional written statement, it cannot be said that a new case is introduced by the defendants, abandoning the old case or by the additional written statement, their right if any acquired, is going to be prejudiced or eclipsed. Accordingly, the Civil Revision Petition was allowed, setting aside the order of the trial court. ## 13. In **P.Saraswathi v. C.Subramaniam (AIR 2014 Madras** **50)** , another decision relied on by the learned counsel for the petitioner, a learned Judge of the Madras High Court, in the context of Order VI, Rule 17 and Order VIII Rule 9 of the Code, held that the Legislators when amended the Code of Civil Procedure thought it fit not to allow the party to have amendment, as a matter of right, that too in a case where he had an opportunity to raise the same, at the time of filing the pleadings. But, when they come to Order VIII of the Code, no such restriction has been imposed, thereby giving discretion to the court concerned to allow the subsequent pleadings, for which it is not necessary whether that defence was available on the date of filing of the original written statement or not. Under Order VIII, Rule 9 of the O.P(C) No.2684 of 2017 :-10-: Code, the power is given to the court to call for the written statement or additional written statement from any party, fixing time not exceeding thirty days, thereby showing the provisions of Order VIII, Rule 9, liberal in its application, giving wide discretion to the court, probably to give a chance to the parties to agitate their right even raising subsequent pleas, for which, the court should not be rigid, and the courts should exercise their discretion liberally, when it will not affect the right of the party. 14. In **P.Saraswathi's case (supra)** the court held that, under Order VIII, Rule 9 of the Code wide discretion is given to the court to receive the written statement or additional written statement, to give opportunity to the parties to agitate the case effectively. Therefore, the rigid principal applicable in the case of amendment of plaint under Order VI, Rule 17 of the Code cannot be applied in the case of receiving additional written statement under Order VIII, Rule 9. 15. In **Baby v. Sebastian (2007 (3) KLT 885)** , in the context of Order VIII, Rule 9 of the Code, a learned Judge of this Court held that, Order VIII, Rule 9 deals with pleadings subsequent to plaint and written statement. 'Subsequent pleadings' can be either by the plaintiff or by the defendant. What Rule 9 provides is only that no pleadings subsequent to the written statement of the defendant other than by O.P(C) No.2684 of 2017 :-11-: way of defence to set off or counter-claim shall be presented except with the leave of the court. It is thus clear that the reference to set off or counter-claim under Order VIII, Rule 9 is with reference to subsequent pleadings raised by the plaintiff and not to subsequent pleadings raised by the defendant. As far as subsequent pleadings raised by the defendant are concerned, and for any subsequent pleadings from the plaintiff other than those by way of defence to the pleas of set off and counter-claim, what is necessary is that the leave of the court shall be obtained. Additional pleadings raised by the defendants subsequent to the written statement originally filed by them under Order VIII, Rule 1 of the Code are often referred to as additional written statements. Filing of additional written statement may be necessitated for the purpose of introducing new contentions or for clarifying or elaborating on the contentions already raised. That need not necessarily be for raising pleas of set off or counter-claim, since having regard to the rules of limitation applicable to pleas of set off and counter-claim, defendant may have to raise such pleas at the earliest opportunity itself. 16. In **Baby's case (supra)** it was contended that most of the averments in the proposed additional written statement sought to be filed by the defendant were well within the knowledge of the defendant O.P(C) No.2684 of 2017 :-12-: at the time when he filed the original written statement and that, he has not offered any explanation in his affidavit in support of the leave application as to why those averments could not be raised earlier. This Court found that, the additional contentions sought to be raised through the additional written statement cannot be said to be totally irrelevant for adjudication of the issues in that suit. Therefore, this Court found that the application submitted by the defendant should have been allowed by the court below, but on terms. 17. In **Jayalakshmi v. Sarada [(2010) 14 SCC 528]** a decision relied on by the learned counsel for the respondent, one of the questions that was raised before the Apex Court was as to the distinction between Order VI, Rule 17 and Order VIII, Rule 9 of the Code of Civil Procedure. In the said decision, after referring to the provisions of Order VI Rule 17 of the Code, the Apex Court held that the said Order and Rule speaks of amendment of pleadings, whereas Order VIII, Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former, unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings. In the said decision, after referring to the provisions O.P(C) No.2684 of 2017 :-13-: under Order VI Rule 17 of the Code and also the decisions on this aspect, the Apex Court found no reason to interfere with the order passed by the High Court. 18. In **Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally [(2009) 15 SCC 528]** the Apex Court held that the courts should be more generous in allowing the amendment of the counter statement of the defendant than in the case of plaint. In the said case the Apex Court found that the High Court in its impugned order has also observed that, in order to file an additional counter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter statement was rejected by the High Court on the ground that while allowing such additional counter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage. 19. In **Olympic Industries case (supra)** the the Apex Court held that, while allowing the additional counter statement or refusing to accept the same, the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided. The Apex Court found that, by filing an additional counter statement in that case would not cause injustice or O.P(C) No.2684 of 2017 :-14-: prejudice to the respondents but that would help the court to decide the real controversy between the parties. Therefore, the Apex Court held that the High Court was not justified in rejecting the application for permission to file additional counter statement as no prejudice could be caused to the respondent, which would otherwise be compensated in terms of cost. 20. In view of the provisions under Order VIII, Rule 9 of the Code and also the law laid down in the decisions referred to supra, conclusion is irresistible that, merely for the reason that the trial of the suit has already been commenced and the evidence of the plaintiff has already been over, the trial court was not justified in rejecting the application made by the petitioner/defendant for accepting additional written statement. The averments in the additional written statement sought to be filed would make it explicitly clear that, the additional plea sought to be raised will cause no prejudice to the respondent/plaintiff. It would only help the court to decide the real controversy between the parties. In the original written statement, the specific stand taken by the defendant is total denial of the alleged sale agreement dated 23.12.2011. It is only in furtherance to the said contention that the defendant wants to contend that, as on the date of execution of the alleged sale agreement, the maximum value of the plaint schedule O.P(C) No.2684 of 2017 :-15-: property, which was constructed under a scheme for homeless persons, could only be 3 lakhs. Such a plea sought to be raised in the additional₹ written statement cannot be termed as a plea inconsistent to that taken in the written statement originally filed. In that view of the matter, I find absolutely no reason to sustain Ext.P6 order passed by the court below. 21. In the result, this Original Petition is allowed setting aside the Ext.P6 order dated 19.8.2017 of the Munsiff's Court, Ottappalam in I.A.No.1538/2017 in O.S.No.195/2014. Accordingly, the said interlocutory application will stand allowed and the additional written statement filed by the petitioner/defendant will stand accepted on file. The learned counsel for the respondent/plaintiff would submit that, the court below may be directed to dispose of the suit within a time limit. Considering the fact that the trial of the suit has already commenced, I deem it appropriate to direct the court below to finally dispose of O.S.No.195/2014 within an outer limit of three months from the date of production of a certified copy of this judgment. **ANIL K. NARENDRAN JUDGE** ab //True Copy//