V. Rajarajan, v. S. Veerayya,

ORDER The petitioner herein is the eight defendant in O.S.No.251 of 2005, which was earlier filed as O.S.No.259 of 1986 before the Principal District Munsif Court, Dindigul. The petitioner and the seventh defendant are the brothers and the sons of Late.Vadivel, the fifth defendant in the said suit.

¶2In the above proceedings, the petitioner's and the seventh defendant's interests were represented by their paternal uncle namely, the sixth defendant Soundararajan. The petitioner claims that the subject property namely, Item Nos.31 to 34 were purchased in their favour on 05.11.1986 from the two wives of Late.Subban Ambalam and the purchase was made for their benefit in the name of their paternal uncle Soundararajan, the sixth defendant in the above suit.

¶3The records further indicate that the case of the respondent/plaintiff before the Trial Court is that the said Subban Ambalam had executed three Wills, two of which are registered Wills, whereby about 35 items were bequeathed in his favour, in respect of which, there have been further inter se alienations by the defendants.

¶4The records also indicate that a Memo has been filed on 13.08.1991 by the defendants 5 to 8 in the above suit namely, the father and paternal uncle of the petitioner herein on their behalf and on behalf of the petitioner and his elder brother, [seventh defendant], whereby, they agreed to submit to the decree as far as Item Nos. 31 to 34 are concerned. In the said proceedings, the petitioner and his brother filed I.A.Nos.927 of 2016 to discharge the guardianship and to record them as majors.

¶5The learned Principal District Munsif, Dindigul, vide order dated

25.01.2017, allowed the said I.A.No.927 of 2016. The relevant portion of the said order reads as under:- ''5(4). vjpHkDjhuH jug;gpy; ,k;kDtpw;F ,uz;L Ml;Nrgidfs; njhptpf;fg;gl;Ls;sJ. Kjy; Ml;Nrgidahf kDjhuHfs; rhHghf kDjhuHfspd; ,aw;if fhg;ghsuhf nray;gl;l 5k; gpujpthjp 13.08.1991 NjjpapNyNa gpujhd tof;fpy; jPHg;gpw;F rk;kjk; njhptpj;J> Fwpg;ghiz jhf;fy; nra;Js;sjhy; jw;NghJ kDjhuHfs; mry; tof;fpy; vjpHthjk; nra;a jilgl;Ls;sjhf Ml;Nrgpf;fg;gl;Ls;sJ. kDjhuHfs; rhHghf 5k; gpujpthjp gpujhd tof;fpy; jPHg;G nra;a rk;kjk;

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¶6In Paragraph No.5(7), the objection of the respondent/plaintiff regarding the limitation was also overruled by the Court below with the following observation:- ''5(7). fhytiuaiu rl;lj;jpd; cWg;G 60 MdJ> mry; tof;if jhf;fy; nra;tjw;F fhytiu epHzak; nra;ag;gl;Ls;sNjnahopa chpikapay; eilKiw rl;lk; fl;lis 32 tpjp 11 kw;Wk; 12d; fPohd kDtpw;F my;y. Mjyhy; cWg;G 60 MdJ ,k;kDtpw;F nghUe;jhJ. ,e;j kDjhuHfis ,stuhf fhl;b tof;F njhlHe;Js;s vjpHkDjhuHjhd; ,stH kDjhuHfs; chpa taij mile;j rkaj;jpy; jf;f

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¶7After the above orders were passed, the petitioner herein along with the seventh defendant, namely, his elder brother filed a written statement on 14.06.2017. After the trial commenced and after completion of chief-examination and cross-examination of the respondent's/plaintiff's witness, the petitioner filed I.A.No.71 of 2023 under Order VIII Rule 9 of C.P.C. to accept the additional written statement and proceed further with the trial. The learned Principal District Munsif, Dindigul, vide impugned order dated 06.02.2023, has rejected the application filed by the petitioner. The relevant portion of the impugned order reads as under:- ''6. gpur;rpidf;fhd jPHT ,e;j kDjhuH mry; tof;fpd; 8k; gpujpthjp. jw;rkak; mry; tof;fpw;fhf $Ljy; vjpHtof;Fiu jhf;fy; nra;Js;sjhfTk;> mij Vw;Wf;nfhs;s Ntz;LkhWk; ,k;kD jhf;fy; nra;ag;gl;Ls;sJ. mry; tof;fhdJ 2005k; Mz;L jhf;fy; nra;ag;gl;L jw;rkak; gpujpthjp jug;G rhl;rpa tprhuizf;fhf epYitapy; ,Ue;J tUfpwJ. mry; tof;fpd; Mtzq;fis ftdkhf ghprPyid nra;j gl;rj;jpy; C.R.P.(MD)No.997oofo2023 kDjhuUf;fhf kDjhuhpd; je;ij tbNty; vd;gtH fhHbadhf ,Ue;J tof;if elj;jp te;Js;sJ njhpatUfpwJ. Mdhy; kDjhuH jw;rkak; ,e;j kDtpy; mtuJ rpwpa je;ij mtUf;fhf fhHbadhf ,Ue;J tof;if elj;jp te;jjhf Fwpg;gpl;Ls;sJ Vw;fj;jf;fjhf ,y;iy. kDjhuH jdJ mgpltpl;by; 5> 6 gpujpthjpfs; mry; tof;fpy; jhf;fy; nra;Js;s Fwpg;ghiz kDjhuiu vt;tifapYk; fl;Lg;gLj;jf;$baJ my;y vd;Wk; njhptpj;Js;sJk; Vw;fj;jf;fjhf ,y;iy. Vnddpy ;

14.08.1991y; ,t;tof;fpy; gjpT nra;agg; l;Ls;s Fwpg;ghizapd; mbg;gilapy; vjpHkDjhuH jhf;fy; nra;j tof;fhdJ xg;Gf;nfhs;sg;gl;lJ. mjd; mbg;gilapy; mry; tof;fpy; rhl;rpa tprhuiz KbAWk; epiyapy; ,Uf;fpd;w #o;epiyapy; Nkw;fz;l Fwpg;ghiz tpguq;fSf;F tpNuhjkhf kDjhuH jw;rkak; vjpHtof;Fiu jhf;fy; nra;tjhf $wpAs;sJ Kuz; jilahf cs;sJ> Vw;fj;jf;fjhf ,y;iy. NkYk; ,k;kDjhuUk;> kDjhuhpd; rNfhjuUk; NrHe;J ,.k.vz;.861/2016 jhf;fy; nra;J kDjhuiu Nk[H vd tpsk;Gif nra;jpl Nfhhp mjd; mbg;gilapy; 25.01.2017y; kDjhuH Nk[H vd cj;jpuT gpwg;gpf;fg;gl;Ls;J. mjd; gpd;dUk; kDjhuH jug;gpy; $Ljy; vjpHtof;Fiu jhf;fy; nra;tjw;F tha;gG; fs; toq;fg;gl;bUe;j NghjpYk; $l kDjhuH jug;gpy; $Ljy; vjpHtof;Fiu jhf;fy; nra;ag;gltpy;iy. vdNt jw;rkak; $Ljy; vjpHtof;Fiu jhf;fy; nra;tjw;F mDkjp Nfl;Ls;sJ Vw;fj;jf;fjhf ,y;iy. NkYk; kDjhuH Nk[H vd tpsk;Gif nra;agg; l;l gpd;dH cldbahf kDjhuH jug;G Ml;Nrgid vJTk; jhf;fy; nra;ag;glhky; kDjhuUf;F mijg;gw;wpa tpguq;fs; njhpahjjhy; Ml;Nrgid jhf;fy; nra;atpy;iy vd;W kDjhuH thjpl;lJk; Vw;fj;jf;fjhf ,y;iy. Vnddpy; kDjhuH xU tof;fwpQH vd;w epiyapy; mtUf;F Nkw;fz;l tpguq;fs; njhpahky; Ngha;tpl;ljhf thjpl;lJk; Vw;fj;jf;fjhf ,y;iy. NkYk; vjpHkDjhuH jug;gpy; kDjhuH xU tof;fwpQH vd;w epiyapy; mtH Nk[uhf tpsk;Gif nra;agg; l;l gpd;dH 20 tUlq;fs; fhyjhkjkhf jw;rkak; $Ljy; vjpHtof;Fiu jhf;fy; nra;tjhf njhptpj;Js;sij nghWj;J fLikahf Ml;Nrgid njhptpj;Js;s epiyapYk;> ,k;kDthdJ Vw;fj;jf;fjhf ,y;iy vd;Nw ,e;ePjpkd;wk; jPHkhdpf;fpwJ.''

¶8The learned counsel for the petitioner submits that the Court below has filed to note that the suit is of the year 1986 and was re-numbered in the year 2005 as O.S.No.251 of 2005. It is submitted that this aspect has not been considered by the Court below. The Court below has also not considered the order passed in I.A.No. 927 of 2016 on 25.01.2017, whereby, the status of the petitioner and the petitioner's brother [seventh defendant] were recorded as ''majors'' and a consequential order was passed in I.A.No.861 of 2016, discharging the guardianship.

¶9It is submitted that even though the trial had commenced, the petitioner was unaware of the Memo, which is said to have been filed on 13.08.1991 by the petitioner's paternal uncle and the father of the petitioner, namely, defendants 5 and 6 for themselves and for the minors, whereby, they agreed to submit to the decree as far as Item Nos.31 to 34 are concerned. It is submitted that above said undertaking is not binding on the petitioner and his brother in view of Order XXXII Rule 7 of C.P.C. Therefore, it is submitted that the impugned order passed by the learned Principal District Munsif, Dindigul, is liable to be interfered with under Article 227 of the Constitution of India.

¶10Per contra, the learned counsel for the respondent/plaintiff submits that the above said Memo, dated 13.08.1991, is binding on the petitioner and his brother [seventh defendant]. That apart, it is submitted that the after the guardianship was discharged and the age of majority was declared, the petitioner and his brother [seventh defendant] filed a written statement on 14.06.2017. It is submitted that in the said written statement, there was no whisper about the Memo, dated 13.08.1991. Therefore, it is submitted that the question of allowing the petitioner to file additional written statement does not arise. Hence, the leave has been rightly rejected by the Court below.

¶11That apart, it is submitted that the properties in Item Nos.31 to 34 itself were purchased during the pendency of O.S.No.251 of 2005 [formerly O.S.No.259 of 1986]. Therefore, no useful purpose will be served even if the impugned order is interfered with. It is further submitted that the respondent had also filed C.R.P.

(MD)Nos.1395 and 1939 of 2015, for speedy disposal of O.S.No.251 of 2005 and another O.S.No.350 of 2006 and that there were directions issued to the Court below to dispose the suits at the earliest. It is, therefore, submitted that the intention of the petitioner is only to delay the disposal of the suits.

¶12I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent and also perused the provisions of C.P.C., particularly, Order XXXII Rule 7 of C.P.C.

¶13The fate of Memo that was filed by the defendants 5 and 6 i.e., the father and paternal uncle of the petitioner on their behalf and on behalf of the petitioner and his brother [seventh defendant] on 13.08.1991, is to be decided by the Court below at the time of final disposal. Having allowed the petitioner and his brother to be declared as majors and independently, allowed them to file the written statement, the Court is empowered to grant leave under Order VIII Rule 9 of C.P.C. Incidentally, this Court has also dealt with the dichotomy arising out of amendment to C.P.C. in the year 2002 in Muthusamy vs. Thangaraj reported in 2005 (4) MLJ 119 : MANU/TN/2464/2005 [C.R.P.(PD)No.478 of 2005, decided on 30.06.2005], in Paragraph No.8, which reads as under:- ''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 the original case. In this context, we have to see the relevant provisions, namely Order 8, Rule 9, C.P.C. Order 8, Rule 9, C.P.C. reads: "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 presenting the same." It does not say that no application for receiving the additional statement shall be allowed, after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial, as provided under Order 6, Rule 17, C.P.C. proviso. The legislators when amended the C.P.C. thought it fit not to allow the party to have amendment, as a matter of right, that too in a case where they had an opportunity to raise the same, at the time of filing the pleadings. But, when they come to Order 8, C.P.C., no such restriction has been imposed, thereby giving discretion to the Court concerned to allow the subsequent pleadings, for which it is not necessary whether that defence was available on the date of filing of the original written statement or not. Under Order 8, Rule 9, C.P.C., power is given to the Court to call for the written statement or additional written statement from any party, fixing time, not exceeding 30 days, thereby showing the provisions of Order 8, Rule 9, C.P.C. is liberal in its application, giving wide discretion to the Court, probably to give a chance to the parties, to agitate their right even raising subsequent pleas, for which, the Court should not be rigid. The Courts should exercise their discretion liberally, when it will not affect the right of the party.''

¶14In my view, the petitioner and his brother cannot be denied the right to file additional written statement, as admittedly, the petitioner and his brother were party to the proceedings right from the inception of the suit in O.S.No.259 of 1986, which was later re-numbered as O.S.No.251 of 2005. At the time when the suit was instituted, both the petitioner and his brother were minors, they have attained the age of majority on 04.07.1999 and 20.07.1993, respectively. Whether the petitioner and his brother are entitled to successfully defend themselves is a matter to be determined by the Court after trial and final arguments.

¶15Further, no prejudice would be caused, if the additional written statement was allowed. The learned Principal District Munsif, Dindigul, has committed an error in rejecting the application particularly, after allowing the order to be passed in I.A.No.927 of 2016, merely, because the written statement was filed after declaration of the petitioner and his brother as majors, would not mean the circumstances, as in this case, leave cannot be granted for filing additional written statement.

¶16Therefore, for the above said reasons, in my view, the impugned order, dated 06.02.2023, passed in I.A.No.71 of 2023 in O.S.No.251 of 2005, is liable to be set aside. Accordingly, it is set aside. I.A.No.71 of 2023 in O.S.No.251 of 2005 stands allowed. The additional written statement filed by the petitioner and his brother [seventh defendant] shall be taken on record. If the Court desires, additional issues may be framed. The learned Principal District Munsif, Dindigul, shall thereafter, endeavor to proceed with the trial in O.S.No.251 of 2005 and dispose of the same as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order.

¶17This Civil Revision Petition stands allowed with the above observation and directions. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes/No

13.04.2023 Index : Yes/No Internet : Yes/No smn2 To The Principal District Munsif, Dindigul.

C.SARAVANAN, J. smn2

13.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.04.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.4681 of 2023 V.Rajarajan .. Petitioner Versus S.Veerayya .. Respondent Prayer :- Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order, dated 06.02.2023, in I.A.No.71 of 2023 in O.S.No.251 of 2005, on the file of the Principal District Munsif Court, Dindigul. For Petitioner : Mr.H.Lakshmi Shankar For Respondent : Mr.K.Hariharan