The Civil Revision Petition is filed against the judgment and decree dated 19.12.2008 passed in C.M.A.No.19 of 2008 on the file of Principal Sub Court, Salem, confirming the fair and decreetal order dated 9.4.2008 passed in I.A.No.433 of 2008 in O.S.No.94 of 2007 on the file of the First Additional District Munsif Court, Salem.
2. The revision petitioners are the defendants 1 to 4. The respondent is the plaintiff. The plaintiff is the daughter of the first defendant. The first defendant is the wife of late S.N.Govindarajan. Defendants 2 to 4 are also daughters of late S.N.Govindarajan. The suit is filed for partition of the suit schedule property. A written statement was filed by the first defendant, the wife of late S.N.Govindarajan and mother of the plaintiff. The said written statement was adopted by the other defendants, viz., defendants 2 to 4, who are the revision petitioners herein. The trial commenced on 29.1.2008. The plaintiff's side evidence was closed and posted for defendants' side evidence, at that point of time, a petition under Order VIII Rule 9 read with Section 151 CPC was filed stating that the petitioners herein, who are defendants, want to file additional written statement. The proposed additional written statement filed by the third defendant states that the plaintiff borrowed Rs.1,25,000/- on 10.12.2001 and Rs.3,00,000/- on 4.9.2006 from the mother, viz., the first defendant and did not repay the Principal and interest. It is further averred that when the defendants 2 to 4 demanded repayment of the said amount with interest, the plaintiff has filed the suit for partition. Para 4 of the proposed additional written statement which is relevant for the present adjudication reads as follows:-
"4. Under these circumstances the plaintiff is already enjoying 95 sq.ft. of joint family property worth about Rs.95,000/- and borrowed a sum of Rs.4,25,000/- from the 1st defendant and not repaid it. Hence this principal amount and interest together may be set off from the plaintiff's share. The remaining amount should be given by the plaintiff to the other defendants."
Though the application is filed under Order VIII Rule 9 CPC, in effect, the revision petitioners/defendants 1 to 4 have made a plea for set off from the amount said to have been paid to the plaintiff.
3. The respondent/plaintiff filed a detailed counter and stated that the trial has commenced, plaintiff's side evidence was closed and when the matter was listed for defendants' side evidence, they came forwarded with the plea of set off. There is undue delay on the part of the defendants in filing the petition. The illness of the mother for the alleged delay is denied. In the written statement that has already been filed, the said plea is not raised. The new plea has no relevance to the partition suit. The allegation of borrowing the amount from the first defendant is also denied. The specific plea is that the partition suit is with regard to the plaintiff's right over the property of the father and not that of the mother of the plaintiff. It is further pleaded that the plea of borrowing money from the first defendant is wrong and emphatically denied.
4. Learned First Additional District Munsif, Salem, dismissed the petition stating that the plea of set off should have been taken at the first hearing. In the written statement filed by the first defendant, the mother of the plaintiff, such a plea was not taken. Defendants 2 to 4 have adopted the written statement filed by the first defendant, the mother. The trial court held that no reason is given for not pleading the set off claim at the first hearing of the suit. Since the trial had commenced on 29.1.2008 and the evidence of plaintiff was over, the case was posted for defendants' side evidence, the learned Additional District Munsif dismissed the application.
5. In appeal, the learned Sub Judge, came to hold that the trial has commenced, the plaintiff's side evidence was over, the case was posted for defendants' side evidence, and a new plea that the plaintiff has borrowed money from the first defendant has been taken by way of set off, which cannot be raised in a partition suit. In any event the courts below held that court fee has not been paid for the set off claim. For the above said reasons, the appeal was dismissed. Present revision has been filed challenging the orders of the court below.
6. Para 4 of the proposed additional written statement, clearly states that certain amount has been borrowed by the plaintiff from the first defendant, the mother and that has to be set off. However, the application has been filed under Order VIII Rule 9 CPC stating that it is a further pleading thereby confusing the issue. In any event, in the written statement filed by the mother, the first defendant, there is no whisper that the plaintiff borrowed the money from the first defendant. This written statement was adopted by other defendants. The proposed additional written statement is not filed by the mother. The set off is claimed in a partition suit and it relates to the property of the father, whereas the money is alleged to have been paid by the mother. Such a claim, therefore, has no relevance in the partition suit as has been rightly observed by the first appellate court. The set off has not been pleaded at the first hearing. No good reason is stated for the delay and the nature of illness on the part of the first defendant has not been established when it is specifically disputed by the plaintiff, the daughter.
7. The reasoning of the courts below to dismiss the petition is justified. In this case the petition praying to receive additional written statement has been filed after commencement of trial and after examination of plaintiff's side evidence. The plea for set off has been raised apparently to drag the proceedings without any just cause. The courts below have rightly dismissed the petition.
8. Finding no merits, the Civil Revision petition is dismissed at the admission stage. Consequently, connected miscellaneous petition is closed.