The petitioners are defendants in OS.No. 325 of 2007 on the file of the Principal Sub Court, Erode. The respondents filed a suit for specific performance of contract against the defendants on the strength of the sale agreement admittedly executed by these petitioners on 14.12.2006. In the written statement filed by these petitioners originally, they have unambiguously admitted the execution of the sale agreement in favour of the first plaintiff and also the receipt of advance amount of Rs.1,10,000/-, but denied the allegations that time is not essence of contract. In para 8 of the written statement, they have also pleaded that the stipulated period of three months lapsed on 16.3.2007 as per the terms of the agreement, before that, the defendants approached the plaintiffs and conveyed their readiness and willingness to execute the sale deed on 16.3.2007 and all the defendants were waiting at Sub Registrar Office, Uthukuli from morning 10.00 a.m. to evening 5.00 p.m. But the plaintiffs have not turned up to the Sub Registrar's office.
2. The petitioners filed an application in I.A.No. 1017 of 2008 in the suit praying the Court to receive the the additional statement filed by them. The petition was resisted by the respondents by stating that the petitioners as defendants are taking up the pleas both in the original and additional written statement which are destructive against each other and hence, it could not be allowed.
3. The learned Principal Sub Judge, Erode dismissed the application by observing that in view of the inconsistent stand taken by the defendants, the additional written statement could not be received and that in case if the additional written statement is received, it would entirely alter the character and nature of the suit.
4. Mr.S. Kaithamalai Kumaran, learned counsel for the petitioner would submit that inasmuch as it is well settled position that the defendants in a suit can raise inconsistent pleas, the additional written statement can be received and there is no embargo for the Court to do the same. In support of his contention, he gathered support from the decision rendered by this Court in THIYAGARAJAN v. MANIVANNAN 2007- 1- LW 429, in which, the learned Judge after referring to earlier decisions of this Court, reached a conclusion that the Courts should be very liberal in granting relief under Order 8 Rule 9 CPC as wide discretion has been given to the courts to adjudicate the matter including subsequent pleadings completely and finally. Of course the discretion is to be exercised on terms considering the facts and circumstances of the individual cases.
5. Mr.N.Manokaran, learned counsel for the second respondent would garner support from the decision rendered in SRINIVASAN v. MUTHAMMAL (1998 (II) CTC 94), in which it is held that the application to receive the additional written statement raising alternative plea cannot be allowed since it raises inconsistent pleas depriving the plaintiff's benefit of statutory presumption. Learned counsel for the second respondent also placed much reliance upon the decision of the Supreme Court reported in GAUTAM SARUP v. LEELA JETLY (2008) 7 SCC 85, wherein, their Lordships after referring to various decisions of the Supreme Court held that resiling from admissions made in original statement is not permissible in law and the discretion of the Court in permitting amendment to pleadings has to be exercised judiciously. It is also observed that when the defendant admits in the written statement pleas and contention of the plaintiff, thereafter, he cannot be permitted to amend the same to deny or dispute plaintiff's claim. The principles laid down in the above said decision are squarely applicable to the facts of the present case on hand.
6. In the original written statement, besides admitting the execution of the sale agreement, the petitioners have also mentioned that they expressed their willingness to have the sale deed executed, but in spite of their waiting in the Sub Registrar's office, the plaintiffs did not turn up. The new pleas raised in the additional written statement would go to show that the sale agreement was written only as a security for the amount borrowed.
7. Following the ratio laid down by the Apex Court, it ought to be observed that though the defendant is entitled to raise inconsistent pleadings in a suit, he is legally precluded from taking any plea, which is destructive to the earlier stand, that would tend to injure one plaintiff's right which accrued to him by valuable admissions available in the original written statement. Having consciously divulged in the written statement that he was ready and willing to execute the sale deed and was actually waiting for the plaintiff in the Sub Registrar's Office for a considerable time, it is disastrous and opposed to settled principles of law and the same can be a classical instance of "destructive plea".
8. Such being the circumstance and legal position, the petitioners are not entitled for getting the relief before this Court and this Court does not find any illegality or infirmity in the order passed by the court below which deserves to be confirmed and the same is accordingly confirmed.
S.PALANIVELU,J bg/-
9. In result, the CRP is dismissed. No costs. Consequently, connected MP is also dismissed.
19.01.2009 Index : Yes Internet : Yes bg To The Principal Sub Court, Erode.
CRP.PD.No. 44 of 2009