Trial Court has discretion to allow filing of additional W.S.

(This petition is preferred under Article 227 of the Constitution of India against the fair and executable order passed in IA No.106 of 2005 in OS No.18 of 2004 by the learned II Additional District Munsif, Dindigul on 28.2.2005.)

The plaintiff is the revision petitioner.

2. The revision petitioner has filed a suit against the respondent/defendant for recovery of possession of the suit property with certain ancillary relief in respect of certain immovable property, which was opposed by the defendant by filing a written statement, at the first instance, dated 3.8.2004.

3. The parties went on trial on the basis of pleadings. It is an admitted position that examination of P.W.1 is on progress and it is reported, he has to be cross examined. At that stage, the defendant has filed a petition under Order 8 Rule 9 CPC, seeking permission of the court to file additional written statement, raising certain pleas, which were not taken in the original written statement.

4. The trial court, receiving objections for that application, namely IA No.106 of 2005 and by going through the provisions of law, after hearing either side, felt that there is no bar for receiving the additional written statement and in this view to give a chance for the parties to agitate their demands fully, permission was granted to receive the additional written statement, by an order, dated 28.02.2005, which is under challenge in this revision.

5. With the consent of the parties, the revision itself is taken up for final hearing.

6. The submission of the learned counsel for the revision petitioner that when the case is pending for the examination of P.W.1, as part heard, permission granted by the trial court to receive the additional written statement is against law, appears to be not well founded, considering the scope of Order 8 Rule 9 CPC, as rightly claimed by the learned counsel for the respondent. Further submission of the learned counsel for the revision petitioner that the defendant has taken an inconsistent stand in the additional written statement, which should not be allowed also, appears to be not well founded, since by going through the additional written statement, it is seen, he had not abandoned the previous case, whereas he wants to add something more to the original written statement, which came to light after filing of the written statement. In this context, we have to see the original written statement as well as the additional written statement to some extent, not for the purpose of testing its acceptability or veracity, as the case may be.

7. The plaintiff/revision petitioner filed a suit, claiming title over the suit property as ancestral property as well as the same was outlined by way of family arrangement among the family members. Admittedly, whether it is trespass or otherwise, the plaintiff is out of possession and that is why the suit is laid for possession. In the written statement, the locus standi of the plaintiff to claim title over the suit property is questioned, further asserting that there was some sale agreement and in pursuance of the same, possession was entrusted to the party. Now, in the additional written statement, an attempt is made to say that the suit property does not belong to the family, since the revenue records, which was verified later, would reveal that the plaintiff's family is not entitled to the suit property. Further, an attempt is made in paragraph 6 of the additional written statement, projecting the sale agreement, for which also there is already a pleading.

8. True, as seen from the additional written statement, some new pleas have also been taken. Whether this new plea will prevent the plaintiff from succeeding in the case is a matter to be decided at the time of trial, not at the time of receiving the statement. Therefore, the additional written statement, wherein an attempt is made to explain the original statement, giving further particulars, cannot be labelled as entirely a new one, disowning