- (1.) THIS revision is directed against the order of the learned Principal District Munsif, Villupuram, in I.A.No.322 of 1997 in O.S.No.904 of 1995 dated 24.2.1997 rejecting the application filed by the petitioner for filing additional written statement in the said suit.
(2.) THE said suit was filed by the respondent/plaintiff on the basis of a promissory note alleged to have been executed on 17.11.1992 for a sum of Rs.3,000 with interest thereon. Hence the suit for a total sum of Rs.3,805 was filed as due from the suit promissory note. THE petitioner herein filed written statement contending inter alia that he had not executed any promissory note on 17.11.1992. and that the suit promissory note has been filed after correcting the month on which the suit promissory had been executed. It is further contended that it was only in January, 1992 the defendant had executed the promissory note in favour of the husband of the plaintiff for a sum of Rs.2,500 and in the written statement certain further details are also given claiming that the amount due under the promissory note has been realised by the plaintiff and that the claim was barred by limitation. The suit was subsequently taken for trial and the plaintiff had examined herself as P.W. 1. She was also cross-examined and the plaintiff side was closed. The defendant also examined himself as D.W.I But in the midst of examination of D. W. 1 in evidence, the present application under O.8, Rule 9, C.P.C. was filed by the petitioner for filing an additional written statement. In the proposed additional written statement the defendant/petitioner contends that it was only when he was in the witness box he had seen the suit promissory note and found that the signature in the promissory note was not his own, and that therefore, he came to realise that the suit promissory note was a rank piece of forgery and that therefore, the plaintiff was bound to prove the execution and validity of the suit promissory note. He has further pleaded that inasmuch as he had seen the promissory note only when he was tendering evidence as D.W.I, he has not cross-examined the plaintiff with reference to the said allegation. In the affidavit filed in support of the petition for filing written statement also the defendant had reiterated the same allegations and that he came to know of the forgery in the promissory note only on 27.1.1997. It is further pleaded that if he is not permitted to file the additional written statement he will be put to loss and hardship. The respondent/plaintiff filed a counter-affidavit denying the claims of the petitioner. She has pleaded inter alia that the stand now taken by the defendant was unadulterated falsehood and opportunistic and that the defendant was not entitled to make such a plea. The petition had been filed only for dragging on the proceedings and the petition had been filed at the very belated stage after the plaintiff had closed her side, and that allowing the defendant to file additional written statement would cause grave prejudice to the plaintiff and that the defences open to the plaintiff were totally lost. Learned District Munsif after elaborate consideration of the mutual contentions rejected the application for filing additional written statement and hence the above revision.
(3.) MR.V.Raghavachari, appearing for the petitioner contends that the failure to plead forgery in the original written statement was only due to mistake and that since the defendant had seen the promissory note only at the time of tendering the evidence as D. W. 1 he came to know that the suit promissory note had been forged. He would also further plead that even if the pleadings by the defendant in the additional written statement have to be held as contradictory to the earlier stand taken in the original written statement there was no bar for the defendant to set up such a pleading in the additional written statement. Learned counsel for the petitioner relies on a judgment of Thangamani, J. reported in Natarajan v. Lakshmi Ammal and another, 1994 T.L.N.J. 96. Reliance is made on the observation by the learned Judge that the court may allow either party to alter or amend the pleadings at any stage of the proceedings in order to determine the real controversy between the parties and it cannot be refused merely on account of a delay. Learned counsel for the petitioner also relies on the judgment of K.Venkataswami, J., as he then was, reported in Thailammal v. Thrukuman Pathar, 1990 T.L.N.J. 283. Learned counsel relies on the observation of the learned Judge that the general rule regarding the amendment of pleadings was that it shall be granted so as to enable the real question in issue between the parties to be raised on the pleadings particularly when the amendment will cause no injury to the opposite party. In the said case, leave to additional written statement was refused primarily on the ground that if the same was granted, it will take away the right already vested in the plaintiffs in the shape of admission in the written statement filed by the petitioners therein. Learned Judge after considering the views of the earlier rulings, relied on the observations in Dhanaraj v. Nani Stella Sarojini, 81 L. W. 15 as applicable to the facts of the case before the learned Judge. An extract in the said judgment was also relied on by the learned Judge wherein reference was made to a Judgment of a Division Bench of this Court in Subramania Iyer v. Hitchock, A.I.R. 1925 Mad. 950: 22 L.W. 26, wherein it was held that the principles relating to the disposal of an application for amendment of a written statement raising a plea inconsistent with an earlier admission in the original written statement was made by mistake and that in such a case the court should be liberal in allowing the amendment. But where there was a reason to think that the earlier admission was not made by mistake and that the defendant deliberately changes his mind later, he should not be allowed to amend. On the basis of the abovesaid rulings, Mr.Raghavachari contends that the objections raised by the plaintiff in the present case on the ground of delay as well as that the proposed amendment was contradictory to the stand taken in the original statement cannot hold good and that the proposed amendment should be allowed. To appreciate the contentions raised by the counsel, it has to be seen that the present suit is on a promissory note in which certain statutory presumptions arise in favour of the plaintiff. Apart from the presumption which is raised under Sec. 114(c) of the Indian Evidence Act, Sec. 118 of the Negotiable Instruments Act, 1881 also raises certain statutory presumptions. Under Sec. 118 of the Negotiable Instruments Act dealing with the presumption as to the Negotiable Instruments Act, it is held that until the contrary was proved the presumption would arise in respect of the consideration, as to the date of the execution, as to the time of acceptance and transfer etc. Apart from Sec. 118 under Sec.20 of the Negotiable Instruments Act, a further presumption is raised in respect of the negotiable instrument signed and delivered by a person either wholly blank or having written thereon, an incomplete negotiable instrument. In the present case, as could be seen from the observation of the learned District Munsif, D. W. 1 has also claimed that he signed on an incomplete and unfilled promissory note. Therefore, in the present case we are dealing with certain statutory presumptions which accrue in favour of the plaintiff. ;