Challenging the order dated 03.12.2011 passed in O.S.No.356 of 1996 on the file of the learned Additional Sub Court, Namakkal, directing the petitioner herein to file written statement, the petitioner has filed this revision.
2. The petitioner herein is the present first defendant in O.S.No.356 of 1996. Originally, the present first defendant was the original plaintiff and he had instituted the suit for partition against the present plaintiff, who was arrayed as first defendant and other defendants.
3. I heard Mr.M.Rajasekhar, learned counsel for M/s.T.R.Rajaraman, appearing for the petitioner, Mr.C.Jagadish, learned counsel appearing for the first respondent and Mr.T.Dhanya Kumar, learned counsel for the respondents 3 to 6 and also perused the materials available on record.
4. Brief facts which led to the filing of this revision are as follows: The petitioner, original plaintiff, entered into a compromise with respondents 2 to 4 and the deceased Thirumalai Gounder, after giving up the first respondent and a compromise decree was passed on 30.04.1998. Thereafter, the first respondent filed petition being I.A.No.612 of 1998 seeking to transpose him as plaintiff and the present petitioner as defendant No.1. By an order dated 30.4.1998, I.A.No.612 of 1998 came to be dismissed. Challenging the same, the first respondent herein filed C.R.P.No.1759 of 1998 before this Court. By an order dated 11.11.1998, this Court set aside the order passed by the trial Court in I.A.No.612 of 1998 and consequently, the decree passed in O.S.No.356 of 1996 on the basis of the compromise entered into between the parties was also set aside and the trial Court was directed to dispose of the suit on merits and in accordance with law.
5. Subsequently, the first respondent had filed petition to amend the plaint. After the amendment, the petitioner herein was directed to file written statement. Since the petitioner as defendant No.1 has not filed the written statement, he was set ex parte on 04.12.2006. The petitioner filed I.A.No.388 of 2008 to set aside the ex parte order. By an order dated 15.10.2008, the trial set aside the ex parte order passed against the petitioner. However, it had observed that the Court would consider about the treating of the original plaint filed by the petitioner as written statement in the future. While so, the petitioner sought clarification before trial Court qua filing of written statement by the petitioner.
6. After hearing the respective parties, the trial Court, by the impugned order, directed the petitioner to file written statement. Assailing the same, the petitioner has filed the present revision.
7. The learned counsel for the petitioner submitted that the trial Court erred in making the original first defendant as the sole plaintiff forgetting for a moment that provisions of Order XXIII, Rule 1A of C.P.C. was intended to transpose the defendant as plaintiff and in the instant case, since already one plaintiff is there, he should have been transposed as second plaintiff only. He would submit that the trial Court erred in allowing the transposed plaintiff to amend the original plaint filed by the original plaintiff which is contrary to the well settled principles of law.
8. According to the learned counsel, even the amendment is not proper as the same was in Tamil. The learned counsel further submitted that the trial Court erred in directing the petitioner, who had been wrongly transposed as the first defendant to file written statement, without understanding the order passed by this Court while allowing the transposition of the 1st defendant as plaintiff.
9. Per contra, the learned counsel for the first respondent and the respondents 3 to 6 submitted that the trial Court had rightly directed the petitioner to file his written statement and that the order of the trial Court is a reasoned one and the same cannot be interfered with.
10. The point that arises for consideration is whether the trial Court was right in directing the petitioner herein to file the written statement.
11. The petitioner herein, originally as plaintiff, had filed the suit being O.S.No.356 of 1996, impleading the present respondents 1 to 4 and Thirumalai Gounder and also the Chief Educational Officer, Salem as defendants. The said suit was filed for partition of petitioner's 1/12 share in the suit property and for permanent injunction restraining the defendants 3 to 5 therein from putting up any new or additional constructions in S.No.533/1. The first respondent herein had filed written statement and paid court fee for division of his share in the property. On 23.04.1998, the first and sixth defendants in the suit entered into a compromise and a compromise memo was filed and the same was recorded by the trial Court on 23.04.1998. On 24.04.1998, the first respondent filed I.A.No.612 of 1998 to transpose him as plaintiff and transpose the petitioner herein as first defendant and the said I.A. was rejected by the trial Court by an order dated 30.04.1998. On the same day, the trial Court passed decree as per the terms of the compromise memo filed by the parties. Aggrieved by the order passed in I.A.No.612 of 1998, the first respondent herein has filed C.R.P.No.1759 of 1998. By an order dated 11.11.1998, this Court allowed the said C.R.P. and the operative portion of the order reads as under:
17. In view of the above discussions, the order of the court below impugned in this Revision is set aside and I.A.No.612 of 1998 is ordered. Consequently, the decree passed in O.S.No.356 of 1996 on the basis of the compromise entered into between the parties is also set aside and the court below is directed to dispose of the suit on merits and in accordance with law. This Revision is ordered accordingly. No costs. Consequently, C.M.P.No.8535 of 1998 is closed.
12. Pursuant to the order of this Court in the aforesaid revision, the original first defendant was transposed as plaintiff and the original plaintiff was transposed as first defendant in the suit and the present first defendant was directed to file written statement by the trial Court. Amendment was carried out and the present plaintiff has filed amended plaint. Since the petitioner as first defendant has not filed the written statement, he was set ex parte.
13. The petitioner as first defendant filed I.A.No.388 of 2008 to set aside the ex parte order passed against him stating that the original plaint filed by him was not struck off and the same can be treated as written statement. By an order dated 15.10.2008, I.A.No.388 of 2008 filed by the petitioner was allowed by the trial Court, thereby ex parte order against the petitioner was set aside. While setting aside the ex parte order, the trial Court observed that the Court would consider about treating the original plaint filed by the petitioner as written statement in future. The relevant portion of the order of the trial Court in I.A.No.388 of 2008 reads thus:
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14. Thus, from the order passed in I.A.No.388 of 2008, it is seen that the trial Court would be in a position to consider treating the original plaint as written statement of the present first defendant in future.
15. In the grounds, the petitioner urged that he would be transposed as second plaintiff in the suit. When the petitioner has not challenged the transposition ordered by the trial Court, it cannot be contended that he was under the impression that he would be arrayed as second plaintiff in the suit. His grievance now would be only he cannot be directed to file written statement and the plaint averments may be treated as his written statement.
16. It appears that pursuant to the transposition of parties, the present plaintiff had filed amended plaint in Tamil, which was also accepted by the trial Court and still the original plaint filed by the present first defendant (petitioner herein) was in force and the same has not been struck off by the trial Court. While so, no prejudice or hardship would be caused if the original plaint averments of the original plaintiff (now first defendant) is treated as written statement.
17. It also appears from the order of this Court in C.R.P.No.1759 of 1998, before ordering transposition, the present plaintiff as first defendant filed his written statement and also paid court fee for division of his share in the suit property. In the original plaint, the present defendant as original plaintiff prayed the following relief and paid total court fee of Rs.230.50 (Rs.200/- for the relief of partition under Section 37(2) of TNCF Act and Rs.30.50 for the relief of permanent injunction):
(a) directing that 0.87-2/3 Cts being plaintiff's 1/12 share in S.No.533 be divided by metes and bounds in the northern portion of the aid survey number (now subdivided as S.No.533/1) and plaintiff be put in separate possession of the same.
(b) interdicting defendants 3 to 5 from putting up any new or additional constructions in S.No.533/1.
(c) awarding costs of the suit payable to plaintiff by defendants; and
(d) granting plaintiff such other relief or reliefs as this Honourable Court deems fit and proper and thus render justice.
18. As stated supra, by the order of this Court in C.R.P.No.1759 of 1998, dated 11.11.1998, the compromise decree dated 30.04.1998 passed by the trial Court was set aside. Pursuant to the said order, parties were also transposed. Incorporating transposition, amended plaint was filed by the present plaintiff and the original plaint of the original plaintiff has not been struck off. Therefore, this Court finds that there was no hurdle in taking the original plaint as written statement of the present first defendant. The parties to the suit will not be affected if the original plaint is taken as written statement of the present first defendant.
19. It is seen that while directing the present first defendant to file the written statement, the trial Court observed as under:
Further this suit is for partition of the suit property. The placing the defendant No.1 as plaintiff would not prevent his right to get his partition and no prejudice is being caused to him. Further the plaintiff has not denied the share belongs to the defendant No.1 and he is denying the right of other defendants only and without challenging the amendment, passed in I.A.No.111 of 2011 the defendant No.1 cannot plead for converting his plaint as a written statement.
20. Thus, from the aforesaid observation of the trial Court, this Court finds that there is no quarrel by the present plaintiff over the share said to have been claimed by the present first defendant. When the present plaintiff himself has not denied that the share belongs to the present first defendant, treating the original plaint as written statement of the present first defendant would in no way prejudice to the claim made by the present plaintiff in the suit. Moreover, all the controversies between the parties will be decided only during trial. Therefore, at this stage, it would be appropriate to order treating the original plaint as written statement of the present first defendant in the suit.
21. It is to be noted that pursuant to the impugned order, without prejudice to the challenge made in this revision, the present first defendant had filed separate written statement and copy of the same is very much available in the typed set of papers at page No.40. On a reading of the written statement, the present first defendant stated that without prejudice to the first defendant questioning the order in the proper forum, the written statement was filed as directed.
22. For the foregoing reasons, I am of the view that the trial Court committed an error in directing the present first defendant (petitioner herein) to file the written statement and the order of the trial Court warrants interference. It is made clear that this Court has not traversed into the merits of the matter in this order and this order is passed in the peculiar facts and circumstances of this case.
23. In the result,
(a) This Civil Revision Petition is allowed, by setting aside the order passed in O.S.No.356 of 1996, dated 03.12.2001, on the file of the learned Additional Sub-Court, Namakkal.
(b) The learned Additional Sub-Court, Namakkal, is directed to treat the original plaint in O.S.No.356 of 1996, as the written statement of the present first defendant, who was transposed as first defendant from plaintiff.
(c) The learned Additional Sub-Court, Namakkal, is directed to take up the suit on day-to-day basis without giving any adjournment to either parties and dispose of the same within a period of two months from the date of receipt of a copy of this order.
(d) No costs. Consequently, connected miscellaneous petition is closed.
18.09.2017 Note:Issue order copy on 31.08.2018 vs Index : Yes Internet : Yes To The Additional Subordinate Judge, Namakkal.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) No.1082 of 2012 and M.P.No.1 of 2012 18.09.2017