Animadverting upon the order dated 05.09.2008, passed by the learned Additional District Judge, Fast Track Court No.I, Chengalpattu, in I.A.Nos.315, 407 and 408 of 2008 respectively in O.S.No.78 of 2005, this civil revision petition is focussed.
2. Heard the learned counsel for the petitioners. Despite printing the name of the respondents, no one appeared.
3. The revision petitioners/plaintiffs filed O.S.No.78 of 2005 seeking specific performance of the agreement to sell. Whereupon, the defendants entered appearance and filed the written statement. The Court framed issues and posted the matter for trial. During trial, the plaintiffs and the defendants adduced their respective evidence and the matter was posted for arguments. At that stage, it appears that the defendants' Advocate was made to withdraw from the case at the instance of the defendants, whereupon they engaged a new counsel. The defendants filed as many as three I.As. namely I.A.No.315 of 2008 under Order 8 Rule 9 CPC seeking permission of the Court to file additional written statement; I.A.No.407 of 2008 under Order 18 Rule 17 CPC seeking permission of the Court to reopen the evidence on the side of the plaintiffs and I.A.No.408 of 2008 for recalling P.W.1 for further cross examination based on the proposed additional written statement. The revision petitioners filed counter resisting the applications. However, the lower Court allowed all the three applications. Being aggrieved by and dissatisfied with the same, these three revisions have been filed on various grounds.
4. The learned counsel for the revision petitioners/plaintiffs would develop his argument to the effect that at the fag end of the case, the defendants were not legally entitled to file such an additional written statement taking new pleas and also pray the Court for recalling P.W.1 for further cross examination based on such additional written statement after getting the matter reopened.
5. Perused the typed set of papers and the grounds of revision including the order of the lower Court. To say the least, the order of the lower Court is far from satisfactory. Put simply, the lower Court was carried away by the concept that there should not be multiplicity of proceedings and that ample opportunity should be given to the defendants. The lower Court's ratiocination at paragraphs 18 and 19 relating to the written statement having been filed by D1 alone and not by other defendants is antithetical to the existing provision of law . One and the same counsel appeared for all the defendants. It appears D1 signed the written statement and other defendants adopted it and such a statement was presented by the learned counsel to the Court. Based on that, the issues were framed and the entire trial proceeded and reached the arguments stage. I could see no rhyme or reason on the part of the lower Court in its observation that the other defendants have not signed in the written statement filed by the first defendant and there is no proper attestation under the words "adopted by the other defendants." The defendants cannot blow hot and cold approbate and reprobate. When it is their contention that except D1 other defendants have not filed the written statement, then it is obvious and axiomatic that automatically statutory embargo as contemplated under Order 8 Rule 1 CPC would come into operation to the effect that those defendants had no written statement to file and that they lost their defence and thereby attracting Order 8 Rule 10 CPC. In such an event, even the question of filing additional written statement does not arise. Had really the other defendants apart from D1 wanted to file written statement, they ought to have filed application for condoning the delay in filing the written statement and not additional written statement. Here the lower Court went to the extent of holding that since the other defendants apart from D1 for not signing under the words 'adopted by other defendants', they should be allowed to file additional written statement and the view of the lower Court is against logic and reason.
6. Having participated in the trial accepting and adopting the written statement of the first defendant, as the written statement of other defendants, they are estopped from contending otherwise. To the risk of repetition, without being tautologous I would highlight that it is not the case of the other defendants that they wanted to file written statement with the permission of the Court, but it is otherwise. The revision petitioners/plaintiffs in their counter filed in the I.As clearly and categorically pointed out that even in the presuit notice, pleas as found set out relating to the prior agreement to sell which emerged between the petitioners and the one other third party, was not highlighted and in such a case, at the argument stage, the defendants cannot legally be allowed to raise such plea by filing additional written statement. The lower Court in one breath would state that no new pleas are found set out in the additional written statement and in another breath he would observe as though full facts were not set out in the earlier written statement and cross examination was not effected accordingly. Simply because there is change of counsel at the fag end of the suit, the defendants cannot be allowed to virtually seek for a retrial of the matter. In this case, by filing additional written statement and by seeking for recalling P.W.1 for further cross examination based on the additional written statement virtually the defendants have sought for retrial of the matter which cannot be countenanced and upheld.
7. The judgments cited on the side of the defendants before the lower Court are not relevant in the facts and circumstances of this case as the lower Court simply under paragraph 15 extracted certain portions of as many as six judgments which are not at all in any way applicable to the factual matrix involved in this case as detailed and delineated supra. The lower Court has not stated in what manner those six decisions cited by the plaintiffs are applicable to this case. On the side of the plaintiffs, two judgments were cited before the lower Court indicating that the trial Court should be cautious in reopening the case at the final stage. It is therefore clear that the lower Court grossly misdirected itself in understanding the factual matrix and allowed the applications without sound reasons warranting interference of this Court. Accordingly all the three revision petitions are allowed and those I.As. are dismissed. The trial Court is directed to dispose of the suit O.S.No.78 of 2005 within a period of two months from the date of receipt of a copy of this order and report compliance. No costs. Consequently, connected miscellaneous petitions are closed.
04.02.2009 Index :Yes Internet:Yes gms To The Additional District Judge, Fast Track Court No.I, Chengalpattu.
G.RAJASURIA, J.
gms C.R.P.(PD)Nos.4011 to 4013 of 2008 04.02.2009