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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Karumani – Appellant
Versus
Periannan – Respondent
C.R.P. (MD). No. 298 of 2022 & CMP(MD). No. 1348 of 2022
Decided On : 03-03-2023
Additional Written Statement - Partition Suit - The court allowed the defendant's application for reception of an additional written statement, emphasizing the defendant's right to take contradictory/alternative plea in the written statement and the relevance of the partition deed to the suit schedule property.
Fact of the Case:
The defendant in a partition suit filed an application for reception of an additional written statement, referring to an unregistered partition deed and properties not subject matter of the suit.
Finding of the Court:
The court found that the additional written statement did not withdraw any admission made in the original written statement and that the partition deed mentioned the suit schedule property, allowing the defendant's application and setting aside the trial court's order.
Issues: Reception of additional written statement, relevance to suit schedule property, belated filing
Ratio Decidendi: Defendant's right to take contradictory/alternative plea, relevance of partition deed to suit schedule property, timing of filing additional written statement
Final Decision: The court allowed the Civil Revision Petition, set aside the trial court's order, and allowed the defendant's application for reception of an additional written statement.
JUDGMENT
(Prayer: The Civil Revision Petition has been filed under Article 227 of Constitution of India, to set aside the fair and decreetal order dated 09.11.2021 made in I.A.No.1 of 2019 in O.S.No.20 of 2015 on the file of the District Munsif Cum Judicial Magistrate, Thirumayam and allow this civil revision petition.)
1. This civil revision petition has been filed by the defendant in a suit for partition challenging an order dismissing an application for reception of additional written statement.
2. The plaintiff had filed a suit for partition on the ground that he had purchased an undivided share from the defendant by way of a registered sale deed dated 09.04.1986 for an extent of 3.5 cents.
3. The defendant had filed a written statement contending that on 30.01.1983, there was a family arrangement in which the properties were allotted to the share of the defendant and the defendant is in continuos possession and enjoyment of the same.
4. When the suit was posted for cross examination of PW1, the defendant had filed I.A.No.1 of 2019 seeking permission of the Court to file an additional written statement. In the additional written statement, the defendant had referred to a partition deed dated 30.01.1989 in which the shares were allotted to the plaintiff, defendant and their sister Patchai Ammal @Padmini and their brother namely Karuppaiah. They are in separate possession and enjoyment of their respective share. The said partition is an unregistered partition.
5. In the additional written statement, the defendant had further contended that based upon the said unregistered partition, a separate patta has been issued to the respective parties. He had further contended that the plaintiff had sold away a portion that was allotted to him in the said partition deed dated 30.01.1989 by way of a registered sale deed in favour of the third party on 14.12.2005. The application for filing of additional written statement was opposed by the defendant contending that it does not relate to the suit property and the pleadings in the additional written statement relate to the property which are not subject matter of the suit property.
6. The trial Judge had dismissed the application mainly on the ground that they do not relate to the suit schedule property and they are contradictory to the original written statement. This order is under challenge in this revision petition.
7. The learned counsel for the petitioner had contended that in the partition deed dated 30.01.1989 not only the plaintiff and the defendant are parties, but also their sister Patchai Ammal @ Padmini and their another brother Karuppaiah were also parties to the said partition deed. Therefore, the said partition deed refers to some other properties which were allotted to their sister and brother Karuppaiah. The properties that were allotted to the share of Patchai Ammal @ Padmini and Karuppaiah are not subject matter of the suit. However, the survey number which is the subject matter of the suit is also referred to in the said partition deed. Without considering the said fact, the trial Court had dismissed the said application. Hence, he prayed for allowing the revision petition.
8. Per contra, the learned counsel appearing for the respondent had contended that the application has been filed belatedly and it refers to the properties which are not connected with the suit schedule properties.
9. I have considered the submissions made on either side and perused the materials available on record.
10. It is settled position of law that the plaintiff is always barred from taking contradictory stand. However, the defendant is entitled to take contradictory/alternative plea in his written statement.
11. In the present case, a perusal of the additional written statement discloses that the defendant has not withdrawn any of his admission made in the original written statement. The defendant has specifically stated in the additional written statement that there is an unregistered partition deed d
AI
Defendant's right to take contradictory/alternative plea in the written statement and relevance of the partition deed to the suit schedule property
Defendant permitted additional Written Statement to claim exclusive property ownership in partition suit despite trial commencement.
A third-party purchaser lacks the standing to raise the plea of partial partition in a suit for partition among co-owners, as this right is reserved for the co-owners themselves.
A party cannot introduce repetitive claims in an additional written statement without new pleas.
Amendments to pleadings should be allowed to facilitate justice when trial has not commenced and do not prejudice the opposing party.
The main legal point established in the judgment is the discretionary power of the court to allow necessary amendments to pleadings for effective adjudication and to avoid multiplicity of proceedings....
Order 6 Rule 17 proviso restricting post-trial plaint amendment applies to plaintiffs, not defendants in partition suits to prevent multiplicity.
Defendants in a partition suit are entitled to seek inclusion of left out properties, but the proper procedure is to raise the same by way of a counter claim.
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