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2013 Supreme(Mad) 1381
THE MADURAI BENCH OF MADRAS HIGH COURT
S. Vimala, J.
Gowriammal, & Others - Petitioners / Respondents / Plaintiffs
Versus
T. Meenakshi- Respondent
C.R.P.(MD)Nos.7 and 8 of 2012 (PD)
Decided On : March 22, 2013
Advocate Appeared:
Mr. V. Ramakrishnan
Mr. M. Rajaraman
The main legal point established in the judgment is that when additional pleadings contain allegations inconsistent with previous pleadings, the party can raise such pleadings only by way of amendment and not otherwise.
Headnote:
Additional Pleadings - Amendment of Pleadings - Order 8 Rule 9 C.P.C., Order 6 Rule 7 C.P.C. - [Order 8 Rule 9 C.P.C., Order 6 Rule 7 C.P.C.]
Fact of the Case:
The defendants sought to raise additional pleadings inconsistent with previous pleadings. The issue was whether to file additional written statement or amend the original written statement. The Trial Court allowed the additional written statement and additional issues, which was challenged by the plaintiffs in the Civil Revision Petitions.
Finding of the Court:
The Court found that the proposed written statement contained allegations inconsistent with the previous pleadings, and therefore, the 6th defendant could raise additional pleadings only by way of amendment and not otherwise. The orders of the Trial Court allowing the petitions to receive additional written statement and to raise additional issues were set aside.
Issues: The main issue was whether the defendants could raise additional pleadings inconsistent with previous pleadings by filing additional written statement or amending the original written statement.
Ratio Decidendi: The Court analyzed Order 8 Rule 9 C.P.C. and Order 6 Rule 7 C.P.C. to determine the applicability of the provisions in allowing additional pleadings. It was established that the defendants could raise additional pleadings only by way of amendment if the proposed written statement contained allegations inconsistent with the previous pleadings.
Final Decision: The Court set aside the orders of the Trial Court allowing the petitions to receive additional written statement and to raise additional issues, but allowed the 6th defendant to raise the additional pleadings by way of amendment, leaving it to the Trial Court to consider the same in the light of the legal position indicated.
When the defendants want to raise additional pleadings, which raise (a) any new ground of claim or (b) contain any allegation of fact inconsistent with the previous pleadings of the defendants, whether it should be done by way of filing additional written statement or by amending the original written statement is the issue raised in this Civil Revision Petition.
2. The 6th defendant filed a petition in I.A.No.18 of 2010 in O.S.No.675 of 1998 under Order 8 Rule 9 read with 151 C.P.C., praying to receive the additional written statement filed by her. It was allowed by the Trial Court. As against the same, the plaintiffs have filed the Civil Revision Petition(MD)No.8 of 2012.
3. The 9th defendant filed an application under Order 14 Rule 5 C.P.C., in I.A.No.17 of 2010 in O.S.No.675 of 1998, praying to pass an order to frame additional issues.
4. The following issues were sought to be framed which pertain to Item No.4 of the suit property:
a)Whether the plaintiffs had any right over the fourth item of the suit property?
b)Whether the fourth item of the suit property was given to 5th and 6th defendants by their brother late Hariram and as such, the legal heirs of 5th and 6th defendants are in possession of the property?
The said application was allowed by the Trial Court. As against the same, the plaintiffs have filed the Civil Revision Petition(MD)No.7 of 2012.
5. It was the claim of the 6th defendant that the fourth item of the suit property was given to herself (D-6) and the fifth defendant(D-5) and as such, they are in possession and enjoyment of the fourth item of the property. It is claimed that, this statement having been omitted to be stated, has to be brought on record, through the filing of the additional written statement.
6. The issue raised was whether the remedy open to the 6th defendant was to amend the written statement as originally filed or to file additional written statement. The Trial Court was of the view that as the Trial was yet to commence, filing of additional written statement has to be allowed and accordingly, allowed I.A.No.18 of 2010.
7. The Trial Court allowed I.A.No.17 of 2010 in O.S.No.675 of 1998 by the order dated 29.07.2010 on the ground that the additional written statement was permitted to be received in I.A.No.18 of 2010 in O.S.No.675 of 1998.
8. As the filing of the additional written statement / amending the original written statement would generate consequential additional issues arising for consideration, and as such those issues are inter related, common order is pronounced.
9. The deceased 5th defendant has filed a written statement along with the 6th defendant by taking a specific plea that the suit properties are remaining undivided and that they have been in joint possession and enjoyment along with the plaintiff, the 1st defendant and the 4th defendant. In the proposed additional written statement, it is the contention of the 6th defendant that the suit properties were already partitioned even during the life time of the deceased Hariram and hence the suit is not maintainable. Contending that the defendants should not be allowed to take inconsistent and contradictory pleas, the respondents / plaintiffs prayed for dismissal of the petitions.
10. Under the given set of facts discussed above, i.e., when the defendants have raised pleas inconsistent with each other, whether provisions of Order 8 Rule 9 C.P.C., or Order 6 Rule 7 C.P.C., would apply is the issue to be considered.
11. It is relevant to extract Order 8 Rule 9 C.P.C., and Order 6 Rule 7 C.P.C., which are as follows:-
"Order 8 Rule 9 C.P.CSubsequent pleadings:No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter -- claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for pr
