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2019 Supreme(Mad) 2748
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N.ANAND VENKATESH, J.
M.Devi and ors. – Petitioners
Versus
D.Soodamani and ors. – Respondents
CRP (PD)(MD) No.1740 of 2012 and M.P (MD) No.1 of 2012
Decided On : 19-11-2019
For the Petitioner: Mr. K. Govindarajan
Headnote:
Constitution of India,1950 - Article 227 - Civil Procedure Code,1908 - Order VIII - Rule X - Evidence Act - Section 58 - Claim in family property - Written statement filed - Petitioners are the defendants suit - Initially Petitioners and defendants were represented by same counsel and written statement came to be filed written statement was filed by defendant and memo was also filed to effect that written statement is adopted by defendants - Subsequently present Petitioners who are the defendants suit have changed their counsel and have filed an application Order of Civil Procedure Code to file an additional written statement on ground that certain essential facts were not pleaded in written statement that was filed by defendant and therefore they must be given an opportunity to file an additional written statement - Court below has dismissed application mainly on ground that Petitioners have already adopted written statement filed by defendant and they cannot be permitted to bring in new facts by way of filing an additional written statement - Court below has also found that Petitioners had attempted to file additional written statement when suit was at the stage of trial and there was absolutely no explanation as to why Petitioners waited till file this application –Held, Cases cited at bar principle that emerges is that if at time of passing decree there was some material before Court on basis of which Court could be prima facie satisfied about existence of statutory ground for eviction it will be presumed that Court was so satisfied and decree for eviction though apparently passed on basis of compromise would be valid - Such material may take shape either evidence recorded or produced in case or it may partly or wholly be in shape of an express or implied admission made in compromise agreement itself - Admissions if true and clear are by far best proof of facts admitted - Admissions in pleadings or judicial admissions admissible Section Evidence Act made by parties or their agents at or before hearing of case stand on a higher footing than evidentiary admissions - Former class of admissions are fully binding on party that makes them and constitute waiver of proof - They by themselves can be made foundation of rights parties court agree with position in supra and as endorsed in supra that categorical admission made in pleadings cannot be permitted to be withdrawn by way of an amendment - To that extent proposition of law that even an admission can be withdrawn as held in supra does not reflect correct legal position and it is overruled - In view of above discussion this Court is of considered view that court below was right in dismissing application filed seeking leave to file an additional written statement - This Court finds no illegality or infirmity in order passed by Court - Petition dismissed
ORDER :
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India praying this Court to set aside the fair and decretal order made in I.A.No.166 of 2012 in O.S.No.1 of 2007, dated 13.7.2012, on the file of the Additional District and Sessions Judge, Dindigul.
This Civil Revision has been filed challenging the fair and final order passed by the Court below in dismissing the application filed by the Petitioners under Order VIII Rule X of Civil Procedure Code to file an additional written statement.
2. The respondents 1 and 2 filed a suit seeking for the relief of partition and separate possession of 1/8th share in the property and for other consequential reliefs.
3. The Petitioners are the defendants 10 and 11 in the suit. Initially, the Petitioners and defendants 6 and 9 were represented by the same counsel and the written statement came to be filed on 6.6.2007.
4. The written statement was filed by the 9th defendant and a memo was also filed to the effect that the written statement is adopted by defendants 6, 10 and 11.
5. Subsequently, the present Petitioners, who are the defendants 10 and 11 in the suit have changed their counsel and have filed an application under Order VIII Rule IX of Civil Procedure Code to file an additional written statement on the ground that certain essential facts were not pleaded in the written statement that was filed by the 9th defendant and therefore, they must be given an opportunity to file an additional written statement.
6. The Court below has dismissed the application mainly on the ground that the Petitioners have already adopted the written statement filed by the 9th defendant and they cannot be permitted to bring in new facts by way of filing an additional written statement. The Court below has also found that the Petitioners had attempted to file the additional written statement when the suit was at the stage of trial and there was absolutely no explanation as to why the Petitioners waited till 2012 to file this application. Therefore, the Court below found that an attempt has been made to drag on the proceedings.
7. The learned counsel for the Petitioners submitted that the Petitioners are entitled to file an additional written statement and it is a settled law that the defendants are entitled to take even a new and contradictory stand in the additional written statement. The learned counsel submitted that even assuming that the Petitioners had adopted the original written statement that was filed by the 9th defendant, it is always open to the Petitioners to file an additional written statement by bringing-forth certain facts which are essential for the purpose of deciding the suit. The learned counsel submitted that the Court below should have given an opportunity to the Petitioners to file an additional written statement and ultimately, whatever is pleaded in the additional written statement will become the subject-matter of trial and the Court below can always decide the case in accordance with law.
8. It is an admitted fact that the Petitioners, who are the defendants 10 and 11 in the suit have adopted the written statement that was filed by the 9th defendant. This written statement came to be filed in the year 2007. The case was at the stage of trial and in the year 2012, the Petitioners have chosen to file the present application under Order VIII Rule IX of Civil Procedure Code for filing an additional written statement.
9. In the additional written statement, a completely new case has been brought-forth by the defendants. This has been noted by the Court below at Paragraph No.7 of the order. This Court has consistently held that a completely new case cannot be permitted to be introduced in the additional written statement, more particularly, after the commencement of the trial. Useful reference can be made to the judgment of this Court in the case of S.Sathish and another .vs. Dr.Sumathi and four others reported in 2010(5)CTC 198 and the relevant portion of the ju
