- (1.) DEFENDANT in O.S. 1499 of 1995 on the file of District Munsif's Court, Thiruvannamalal is the Revision Petitioner. Suit filed by plaintiff was orie for declaring his title to scheduled property and to recover possession from defendant. Profits were also claimed from defendant.
(2.) DEFENDANT filed written statement on 2.2.1999. Thereafter, the suit was posted for trial in the list. Plaintiff was examined in chief and was cross-examined on two days. Thereafter, an application was filed by petitioner as I.A. 132 of 1999 to receive additional written statement. In the affidavit in support of the petition petitioner alleged about sub-division of the property, that he came to know only after filing earlier written statement and consequently, he seeks to file additional pleadings. The same was seriously opposed by plaintiff by filing a counter. By the impugned order, lower Court held that the case put forward in the affidavit is not true and no sufficient cause is shown for not taking the present contention in the earlier written statement. The application was dismissed and permission sought for was refused. The same is challenged in this Revision Petition. In AIR 1958 Madras 383 = (1957) 70 L.W. 976 ( Nanjan v. Selai ), it is held thus, If the party wants to file an additional written statement, he has to file a petition stating the reason why he failed to say these things in the original written statement, and what excuse there is for allowing him to file an additional written statement at that stage then the other side has to be given an opportunity to oppose the petition and contend that such additional written statement should not be entertained at ?that stage. Then the Court has to give its decision as to whether the additional written statement is to he admitted or not. (emphasis supplied) In AIR 1976 Madras 302 ( Marutthi Gounder v. Karuppann'a ), their Lordships held that the, defendant is entitled to take inconsistent stand and he can also be permitted to file additional written statement. But their Lordships further held that whether permission could be granted for filing additional written statement, will depend on certain circumstances. In para 9 of the Judgment, their Lordships held thus: This is a case where nearly two years after having filed his written statement, the first defendant had acquired some further information and wanted to set up a case which is different from the case which he had originally set up in his written statement. Considering the stage at which such an application has been filed, undoubtedly, prejudice would be caused to the plaintiff who will now be forced to file a reply statement and as a consequence thereof, fresh and different issues will have to be framed and the trial would have to begin once over again. (emphasis supplied)
(3.) IN this case, even though it is not two years, plaintiff's evidence already began and mostly over. At this stage, defendant came with the present application. Learned counsel for petitioner submitted relying on the decision reported in 1995 Supp (3) S.C.C. 179 ( Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary ), that defendant is entitled to take inconsistent positions. Learned Counsel relied on the following passage: The Courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6, Rule 17 C.P.C. by taking a contrary stand to what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. It is true that defendant may be in a position to take inconsistent stand. But that is not the question that has to be decided in this case. Under Order 8, Rule 9 of Code of Civil Procedure, no pleadings after written statement filed can be received except with the leave of the Court. Naturally, when leave is sought for, petitioner will have to explain why the present contention was not raised on the earlier occasion. Pleadings cannot be filed piecemeal. Even if inconsistent stand could be taken, that does not follow that defendant can file written statement at any time as he chooses and even without showing sufficient cause. ;