The defendant in O.S.No.7 of 2014, on the file of the District Court, Sivagangai, being aggrieved over the dismissal of his application in I.A.No.324 of 2016 preferred, under Section 151 of the Code of Civil Procedure, for the reception of the additional written statement, has preferred this civil revision petition.
2. Based on the materials placed, it is seen that the suit has been laid by the respondent / plaintiff for specific performance and permanent injunction. The suit has been filed in the year 2014. Thereafter, it is found that the revision petitioner / defendant entered appearance through his counsel and filed his written statement. Following the same, issues had been framed and accordingly, when the suit is taken up for trial, it is found that the plaintiff had examined her husband as P.W.1 and thereafter, after his examination in chief, when the matter had been listed for several dates for the purpose of cross-examination of P.W.1 by the revision petitioner, it is found that meanwhile, the plaintiff's husband / P.W.1 had passed away and unable to appear before the Court for tendering evidence and accordingly, it is seen that the plaintiff had examined herself as P.W.2 and the documents having been marked on her side to establish her case and thereafter, when the case was listed for several dates for the cross-examination of P.W.2 as such, the present application had come to be preferred by the revision petitioner in I.A.No.324 of 2016 for the reception of the additional written statement. That apart, it is also found that the case had once been disposed of on account of the failure of the revision petitioner to file his written statement by setting him ex parte and the evidence of the plaintiff having been accepted, the ex parte decree had been passed on 25.07.2014. On an application filed by the revision petitioner to set aside the ex parte decree, dated 25.07.2014, in I.A.No.309 of 2014, it is found that the same was entertained. Again, it is also found that on the failure of the defendant to cross-examine P.W.1 i.e., husband of the plaintiff, despite several opportunities, it is found that again the revision petitioner was set ex parte and on an application preferred by the revision petitioner in I.A.No.44 of 2016, the ex parte order was set aside and thereafter, as above mentioned, when the matter had been listed for the cross-examination of P.W.2 on several dates, as requested by the revision petitioner, at that stage of the matter, the application for the reception of the additional written statement has come to be levied.
3. It is found that according to the revision petitioner's case, his earlier counsel had passed away and thereafter, he has engaged a new counsel and on the advice of the new counsel with reference to certain legal pleas, he has been necessitated to file the additional written statement covering the said points and hence, the application for the reception of the additional written statement. The said application was resisted by the respondent / plaintiff contending that the revision petitioner has levied the application belatedly with a view to drag on the proceedings endlessly and further, it is contended that various inconsistent pleas have also been put forth by the revision petitioner in the additional written statement and in such view of the matter, the revision petitioner is not entitled to file the additional written statement and his application is liable to be dismissed.
4. The Lower Court, on a consideration of the rival contentions put forth by the respective parties, found that the revision petitioner is, by way of the additional written statement, attempting to introduce a new set of pleadings, which are inconsistent to the pleas already taken by him in the written statement and further inasmuch as the revision petitioner has come forward with the above said application only to delay the proceedings as seen from his conduct noted above, the Court below had discountenanced his request for the reception of the additional written statement and dismissed his application. Challenging the same, the present civil revision petition has come to be preferred.
5. The learned counsel for the revision petitioner contended that as per the Code of Civil Procedure, the revision petitioner is entitled to file the application for the reception of the additional written statement and asfar as the provision of Order VIII Rule 9 C.P.C., is concerned, it does not say that no application for the reception of additional written statement shall be allowed subsequent to the commencement of the trial as stated in Order VI Rule 17 C.P.C., and further according to him, only on the tendering of the fresh legal advice by his new counsel, he has been necessitated to file the additional written statement and by the introduction of the additional written statement with the legal pleas, no prejudice would be caused to the respondent / plaintiff and also prayed that in case the Court feels that the respondent / plaintiff should be compensated on terms on account of the delay on the part of the revision petitioner / defendant in filing the application, he left it to the discretion of the Court to pass further or other appropriate orders for entertaining the said application.
6. The learned counsel for the respondent / plaintiff contended that all along the revision petitioner has been schemingly delaying the proceedings one way or the other and on account of the same, the respondent was unable to prosecute her case with the evidence of P.W.1 and after the death of P.W.1, she has been necessitated to adduce evidence on her own accord and further, the revision petitioner had left the matter uncontested twice deliberately and after his repeated requests when the suit is listed for the cross- examination of P.W.2 finally, at that stage of the matter, the present application having come to be filed and also the additional written statement containing new pleas not already set out in the written statement, according to him, the application deserves rejection.
7. On a perusal of the written statement filed by the revision petitioner in the main case and also the averments put forth by him in the additional written statement, it is found that the revision petitioner as such has not raised any new pleas in the additional written statement. It is found that he has only explained and elucidated the pleas already set out in the written statement and not raised mutually contradictory pleas. When the pleas raised in the additional written statement are not found to be completely alien pleas and the revision petitioner also entitled to raise inconsistent pleas, in my considered opinion, the reception of the additional written statement filed by the defendant would not in any manner, in such circumstances, seriously prejudice the respondent / plaintiff and therefore, the rejection of the application by the Court below on the footing that the defendant had filed the additional written statement raising inconsistent pleas than that already taken by him in the written statement is not correct.
8. The Lower Court has also discountenanced the request of the revision petitioner on the footing that considering the conduct of the defendant in the prosecution of the suit and his deliberate attempts leaving the suit uncontested and remaining ex parte twice and also not making serious efforts to cross-examine the plaintiff's witness at the earliest, when the suit had been laid for specific performance, on that ground also, the Lower Court has rejected the application preferred by the revision petitioner. The above reasoning of the Lower Court as such cannot be stated to be erroneous or not acceptable.
9. However, it is contended by the learned counsel for the revision petitioner that merely on account of the delay, the revision petitioner should not be deprived of filing the additional written statement and therefore, prayed that the Court may consider the facts and circumstances and allow the application preferred by the revision petitioner on terms so that no serious prejudice would be caused to the respondent / plaintiff.
10. The learned counsel for the revision petitioner / defendant, in support of his contentions, placed reliance upon the decisions reported in 2013 (3) MWN (Civil) 770 [P.Saraswathi vs. C.Subramaniam], 2014 (3) MWN (Civil) 285 [Muthuramu and another vs. A.Muthulakshmi and another], 2016 (3) MWN (Civil) 796 [Sundarajan vs. K.Chandrasekaran and others], 2017 (1) MWN (Civil) 694 [V.R.Sundararajan vs. D.Neelaveni] and 2016 (3) MWN (Civil) 252 [K.Jagan and another vs. Arumugam]. The principles of law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
11. In the light of the above position, particularly, seeing the conduct of the revision petitioner in not prosecuting the case diligently and leaving the matter uncontested and remaining ex parte twice and also not showing keen interest in the cross-examination of the plaintiff's witness at the time fixed by the Court and also considering the fact that the respondent / plaintiff would not be seriously prejudiced in entertaining the application preferred by the revision petitioner for the reception of the additional written statement and further considering the fact that the suit is at the stage of the cross-examination of P.W.2, I am of the opinion that in the interest of justice, the application preferred by the revision petitioner for the reception of the additional written statement should be entertained on proper terms.
12. In the light of the foregoing reasons, the application preferred by the revision petitioner in I.A.No.324 of 2016 for the reception of the additional written statement is allowed on condition that the revision petitioner should pay a sum of Rs.10,000/- (Rupees ten thousand only) directly to the respondent / plaintiff, within a period of two weeks from the date of receipt of a copy of this order. Further, the revision petitioner should also file necessary memo with reference to the compliance of the above said condition before the Lower Court and on the revision petitioner doing the same, the Court below should also report the same to this Court. In the event of the revision petitioner not complying with the said condition within the time stipulated by this Court, it is made clear that this civil revision petition shall stand automatically dismissed without any further reference to this Court.
13. Accordingly, the civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
To:
The District Judge, Sivagangai.
.