The petitioner filed a suit for recovery of money from the respondent in O.S.No.232 of 2004 on the file of the Principal District Judge, Namakkal. The respondent filed written statement stating that he has to pay only a sum of Rs.8, 64,340/- to the petitioner and while P.W.1 was in the witness box for cross examination, the respondent filed an application in I.A.No.48 of 2007 to receive an additional written statement with a plea that he has to pay a sum of Rs.6,28,505/- only. The application was dismissed by the Court below after hearing both sides.
2.Thereafter, the respondent preferred C.R.P.(PD). No.3056 of 2005 on the file of this Court and this Court after hearing the arguments of both the learned counsel, dismissed the civil revision petition on 03.01.2008 by observing that the petitioner cannot be allowed to put forth such plea by way of additional written statement especially when a detailed written statement has been filed by him incorporating the amount borrowed by him and the amount repaid by him to the respondent.
3.The respondent made another attempt to introduce the very same plea in another form by filing an application in I.A.No.31 of 2008 under Order 6 Rule 17 of Civil Procedure Code for amending the written statement to incorporate Rs.6,28,505/- instead of Rs.8,64,340/-. The prayers in both the applications in I.A.No.48 of 2007 and I.A.No.31 of 2008 are identical. The Court below allowed the petition. Hence, this Civil Revision Petition.
4.Inspite of service of notice on the defendant, there is no appearance on his side.
5.Mr.P.Valliappan, learned counsel for the petitioner would submit that inasmuch as the respondent got defeated in the earlier proceedings before this Court in C.R.P.No.3056 of 2008 by somewhere or other he is making efforts to introduce the very same aspects which are discountenanced by this Court and the Court below has not adverted to the fact but allowed the application which is not at all sustainable. This Court sees considerable force in his argument.
6.Having been an unsuccessful party before this Court, it is not proper on the part of the respondent to come forward with the similar plea. In support of his contention, the learned counsel for the petitioner garnered supports from a decision of the Hon'ble Supreme Court in Gautam Sarup V. Leela Jetly and others (2008) 7 SCC page 85, wherein Their Lordships have laid down law that it is impermissibility for a defendant resiling from admissions in original written statements and in this regard the discretion of the Court in permitting amendment of pleadings has to be exercised judicially and the defendant cannot be permitted to amend the written statement to deny or dispute the plaintiff's claim. The relevant portions in the said decisions are as follows:
"28.What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
29.An explanation can be offered provided there is any scope therefor. A clarification may be made where the same is needed.
30.We will assume that despite the amendments made by the Code of Civil Procedure (Amendment) Act, 1976, amendment of pleadings being procedural in nature, the same should be liberally granted but as in all other cases while exercising discretion by a court of law, the same shall be done judiciously."
7.He also placed reliance upon a decision of this Court Papathi and others V. Sakuntala (2009) 1 MLJ 609 in which the learned Judge has expressed his view that by way of additional written statement, defendants cannot be permitted to take away the right accrued to the plaintiff, by raising a mutually destructive plea, which is impermissible in law.
8.Following the principles laid down by the Hon'ble Supreme Court of India, it is held that the defendant namely, the respondent is not competent to get mutually destructive pleas incorporated in his pleadings. It is also added that having got defeated in the earlier round of proceedings up to this Court, the present effort could not be encouraged by the Courts.
9.In the light of the above said observations, the order challenged is not sustainable in law, which deserves to be set aside and it is accordingly set aside and the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
10.Considering the stage of the proceedings i.e. the suit O.S.No.232 of 2004 is in part-heard stage, the learned Principal District Judge, Namakkal is directed to dispose of the suit in O.S.No.232 of 2004 on his file within a period of three months from the date of receipt of a copy of this order.
sgl To The Principal District Judge, Namakkal
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