1. This civil revision petition has been filed as against the fair and final order dated 12.4.2011 made in I.A No. 327 of 2011 in O.S No. 43 of 2009 on the file of the learned Subordinate Judge, Perundurai, Erode District, whereby the application filed by the respondent herein seeking permission of the Court to file additional written statement, was allowed.
2. The plaintiff is the petitioner herein and the second defendant is the respondent.
3. For the sake of convenience, the parties will be referred as per their ranking before the trial Court.
4. The brief facts, which are necessary to decide the issue involved in this civil revision petition, are as follows:—
(a) The plaintiff herein has filed a suit in O.S No. 167 of 2005 on the file of the learned II Additional Subordinate Judge, Erode as against her deceased brother's wife viz., A. Saraswathi for dividing the suit property into 9 equal shares by mets and bounds and allot 7 such shares contiguously to her and put her in separate possession. Subsequently, the said suit was transferred to the file of learned Subordinate Judge, Perundurai and renumbered as O.S No. 43 of 2009. During the pendency of the said suit, the subsequent purchasers viz., defendants 2 and 3 were impleaded as per order dated 22.7.2009 made in I.A No. 44 of 2008.
(b) It is the case of the plaintiff before the trial Court that the suit property originally belonged to one Appachi Gounder and his wife Valliammal. After their demise, their son Marappa Gounder @ Ponna Gounder succeeded the suit property. The said Marappa Gounder @ Ponna Gounder had died leaving behind his son Appusamy and daughter P. Saraswathi, the plaintiff herein. After the demise of the said Marappa Gounder @ Ponna Gounder, his son Appusamy and the plaintiff were in joint possession and enjoyment of the suit property. While so, the plaintiffs brother Appusamy had died on 8.2.2004 leaving behind his wife, the first defendant viz., A. Saraswathi. The plaintiff had filed the present suit as against her deceased brother's wife stating that she is entitled to 7/9th share in the suit property and the first defendant in the suit, viz., her deceased brother's wife is entitled to only 2/9th share over the suit property.
(c) The first defendant has filed a written statement denying the averments made in the plaint.
(d) Defendants 2 and 3, the subsequent purchasers of the property from the first defendant, have also filed a written statement stating that Appusamy, the husband of the first defendant alone was in possession and enjoyment of the entire suit property till his death. After his death, his wife, the first defendant in the suit alone was in possession and enjoyment of the suit property. She had entered into a sale agreement dated 24.1.2005 with three persons viz., K. Ramasamy, A. Thangarasu and Gopal. Subsequently, since the first defendant failed to execute the sale deed, the said K. Ramasamy, A. Thangarasu and Gopal filed a suit as against the first defendant in O.S No. 31 of 2007 on the file of the Fast Track Court, Erode, for specific performance and for other reliefs. The said suit was decreed in their favour on 28.8.2007 On the strength of the preliminary decree passed in O.S No. 31 of 2007, the first defendant along with the above said three persons executed two sale deeds one in favour of second defendant and another in favour of third defendant on 27.3.2008 with regard to her half share. Defendants 2 and 3 have purchased the said property for a valuable consideration. From the date of purchase, defendants 2 and 3 are in possession and enjoyment over the first defendant's half share in the suit property. Thus, the defendant Nos. 2 and 3 sought for the dismissal of the suit.
(e) During the pendency of the trial, since the first defendant was set exparte, the second defendant has filed an application seeking permission to file additional written statement stating that he came to know that the first defendant begot a male child on 29.1.2004 and the said child died subsequently. The birth of the said child was also entered into the death register as Registration No. 1 of 2004. The male child born to the first defendant is entitled for ⅓rd share in the property. On the demise of the said male child, the share of the child in the property devolved upon the first defendant. Likewise, the share of Marappa Gounder and Appusamy, who are the father in law and husband of the first defendant respectively also devolved upon the first defendant on their demise. Thus, the first defendant is entitled to 1/6th share from her father in law, 2/6th share from her husband and 2/6th share from her child. Hence, the first defendant is entitled for 5/6th share in the suit property and the plaintiff in the suit is entitled for only 1/6th share. Therefore, the claim of 7/9th share in the suit by the plaintiff is not legally sustainable. The first defendant being an illiterate, failed to state the birth of the child in her written statement. The suit is also bad for partial partition and non-joinder of necessary parties. Thus, the second defendant prayed for the permission of the Court to file additional written statement with regard to the entitlement of the proportionate 5/6th share in the suit property by the first defendant, since the first defendant has not taken any specific plea with regard to entitlement of her share on account of the death of her child.
(f) The said application was vehemently opposed by the plaintiff stating that the second defendant is not entitled to introduce a new defence by way of additional written statement. Under law, the death bom child is not entitled to get any share of his father's property and the still born child is only entitled to get the share under Hindu law of Succession. Therefore, the application is a misconceived one. If the application is allowed, the plaintiff would be put to irreparable loss and hardships.
(g) The trial Court, after hearing both sides, has allowed the said application filed by the second defendant seeking permission to file additional written statement. Aggrieved over the same, the present civil revision petition has been filed.
5. It is the contention of the learned counsel appearing for the plaintiff that when the suit for partition filed by the plaintiff as against her deceased brother's wife, is pending, the second defendant had purchased the property from the first defendant. The first defendant had filed a written statement merely denying the averments made in the plaint. The second defendant, who was subsequently impleaded in the suit, has also originally filed a written statement in consonance with the written statement filed by the first defendant. After the commencement of the trial and when the suit was in a part-heard stage, the second defendant has filed an application seeking permission of the Court to file additional written statement, by raising a new defence stating that the first defendant is entitled for 5/6th share and the plaintiff is entitled to only 1/6th share in the suit property. With regard to the defence raised in the additional written statement by the second defendant, the learned counsel appearing for the plaintiff submitted that the second defendant, who is the subsequent purchaser, cannot canvass the case of the first defendant by filing additional written statement. At the maximum, the subsequent purchaser can contend that he is a bona fide purchaser and he is not entitled to take any other defence. In support of this contention, learned counsel appearing for the plaintiff has relied upon the judgment reported in 2008 (2) CTC 265 - A. Ramanathan Chetthiar v. R. Ranganayaki. That apart, learned counsel appearing for the plaintiff relying upon the judgment reported in 2013-2-L.W. 748 : 2013 (2) CTC 104 - Thomson Press (India) Ltd. v. Nanak Builders & Investors P. Ltd,, submitted that the subsequent purchaser can pursue only a defence which was available and which was taken by the original defendant and he cannot take any additional defence. In the instant case, the original defendant viz., the first defendant had denied only the averments made in the plaint and she had not taken any specific defence with regard to the proportion of the share, for which she is entitled to, in the suit properties. While so, the subsequent purchaser viz., the second defendant cannot take an additional defence stating that the first defendant is entitled for 5/6th share in the suit property. It is the further submission of the learned counsel appearing for the plaintiff that the second defendant had purchased the property only subsequent to the filing of the suit. An alienation pendente lite is subject to the rule of lis pendens enacted in Section 52 of the Transfer of Property Act. Therefore, as a subsequent purchaser, the second defendant cannot take any additional defence which was not taken by the first defendant originally. In support of this contention, the learned counsel appearing for the plaintiff has also relied upon the judgment reported in 2000-2-L.W. 15 : (2000) II M.L.J 59 - M.M Investments through its Managing Director v. V. Veerappan. Thus, the learned counsel appearing for the plaintiff prays this Court to set aside the fair and final order dated 12.4.2011 made in I.A No. 327 of 2011, permitting the second defendant to file additional written statement.
6. Countering the submission made by the learned counsel appearing for the plaintiff, learned counsel appearing for the second defendant submitted that the first defendant has sold the property by way of two sale deeds both dated 27.3.2008, one in favour of second defendant, the respondent herein and another in favour of third defendant in the suit pursuant to the preliminary decree passed in O.S No. 31 of 2007 filed by one K. Ramasamy, Thangarasu and Gopal for specific performance. In the present suit, the first defendant has filed a written statement by merely denying the averments made in the plaint and she had not taken any specific defence in the written statement with regard to the entitlement of proportion of her share in the suit property. After selling the property, the first defendant remained herself absent in the suit and as such, she was set exparte. Only after commencement of the trial, the second defendant came to know that the first defendant gave birth to a male child on 29.1.2004 and the said child died subsequently. The birth of the said child was also entered into the death register as Registration No. 1 of 2004. On the demise of the said male child, the share of the male child devolved upon the first defendant. Likewise, her husband Appusamy's share devolved upon the first defendant. Hence, the first defendant is entitled for 5/6th share in the suit property, whereas the plaintiff is entitled to only 1/6th share. Since the first defendant has chosen to remain herself exparte, only in order to protect the rights of the subsequent purchasers viz., defendants 2 and 3, the second defendant had sought for permission of the court to file additional written statement. The subsequent purchasers of the property are legally entitled to take an additional defence by filing an additional written statement. Therefore, no infirmity could be found in the order passed by the Court below. In support of this contention, the learned counsel appearing for the second defendant has relied upon the judgment reported in 2012-4-L.W. 343 : 2012 (4) CTC 206 - A. Nawab John v. V.N Subramaniam.
7. Further, the learned counsel appearing for the second defendant submitted that the second defendant, by way of additional written statement, is projecting only additional defence and not any inconsistent defence from the original written statement. Even if it is an inconsistent defence, the same could be raised in the written statement by the defendant. In support of this contention, learned counsel appearing for the second defendant relied upon the judgments reported in 2007-1-L.W. 848 : (2006) 6 SCC 498 - Baldev Singh v. Manohar Singh and (2001) 8 SCC 115 - Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy.
8. Further, the learned counsel appearing for the second defendant by relying upon the judgments reported in 2007-1-L.W.429 - Thiyagarajan v. Manivannan and 2005 (5) CTC 785 - Muthusamy v. Thangaraj, submitted that under Order 8 Rule 9 C.P.C, no restriction has been imposed by fixing time frame to file an additional written statement unlike in the case of amending the plaint under Order 6 Rule 17 C.P.C Therefore, no infirmity could be found in the order passed by the Court below in allowing the application filed by the second defendant to permit him to file an additional statement after the commencement of the trial. Thus, he prays for the dismissal of the present civil revision petition.
9. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record.
10. In view of the submissions made on either side, now the following questions fall for consideration:—
(i) Whether the subsequent purchaser of the property pending suit, can canvass the defence, which is available to the original defendant in the suit?
(ii) Whether the second defendant can take an inconsistent defence from that of the original written statement filed by him?
(iii) Whether the filing of the additional written statement by the second defendant could be entertained after the commencement of the trial?
11. With regard to the first question, it is the submission of the learned counsel appearing for the plaintiff that the subsequent purchaser cannot canvass the defence available to the original defendant. At the maximum, he can claim that he is a bona fide purchaser and not any other defence. With regard to this contention, learned counsel appearing for the plaintiff has relied upon the decision in the case of A. Ramanathan Chetthiar v. R. Ranganayaki. In the said decision, the suit was filed for specific performance by the plaintiff as against the first defendant. During the pendency of the said suit, the suit property was sold by the first defendant and hence, the subsequent purchasers were also added as parties in the said suit. The subsequent purchasers remained absent in the said suit and they were set exparte and the first defendant had taken a defence that the time was the essence of the contract and the plaintiff was not ready and willing to conclude the sale in time. The trial Court, on completion of trial, dismissed the suit. Aggrieved over the same, the plaintiff had filed an appeal before this Court and in the said appeal, the subsequent purchaser contended that time was the essence of contract under the agreement between the plaintiff and the first defendant and it was the plaintiff, who was not ready and willing to conclude the sale in time. Only in that circumstances, this Court has held that the third defendant, i.e, the subsequent purchaser in the said suit, who had not chosen to file written statement and who remained exparte before the trial Court, is having no right to canvass the case of the first defendant and pick holes in the case of the plaintiff. The factual aspects of the said case are entirely different from the facts of the present case. As far as the case on hand is concerned, the plaintiff has filed the present suit as against the first defendant claiming 7/9th share in the suit property. On the strength of the preliminary decree passed in O.S No. 31 of 2007, i.e, the suit filed by three persons viz., K. Ramasamy, Thangarasu and Gopal as against the first defendant herein, the first defendant had sold the property in favour of defendants 2 and 3 pending the present suit. After selling the property, the first defendant has remained absent in the suit and hence, she was set exparte. Thereafter, the second defendant came to know about the fact that the first defendant gave birth to a male child on 29.1.2004 and the birth of the child was also entered into the death register as Registration No. 1 of 2004. Subsequently, the child born to the first defendant had died. Hence, after the demise of the said child, the share of the child devolved upon the first defendant. Likewise, the share of her father-in-law and her husband also devolved upon her and hence, she is entitled for 5/6th share in the suit property and the plaintiff is entitled only 1/6th share. After selling the property, since the first defendant has chosen to remain exparte, only in order to protect his rights, the second defendant along with third defendant filed an application seeking the permission of the Court to file additional written statement after coming to know about the fact that in the year 2004, the first defendant gave birth to a male child on account of her wedlock with Appusamy. Later, the said child died. On the death of the said child, the share of the said child devolved upon her. Since the first defendant has not come forward to protect the rights of the subsequent purchaser after selling the property, the subsequent purchaser is having a right to canvass the defence of the first defendant in order to protect his right. With regard to this contention, a reference could be placed in the judgment reported in 2012-4-L.W. 343 : 2012 (4) CTC 206 - A. Nawab John v. V.N Subramaniam, wherein the Hon'ble Supreme Court has held as follows:—
“19. This Court on more than one occasion held that when a pendente lite purchaser seeks to implead himself as a party-defendant to the Suit, such application should be liberally considered. This Court also held in Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394, that, “justice requires”, a pendente lite purchaser “should be given an opportunity to protect his rights”. It was a case, where the property in dispute had been mortgaged by one of the Respondents to another Respondent. The mortgagee filed a Suit, obtained a decree and ‘commenced proceedings for sale of the mortgaged property’. The Appellant-Saila Bala, who purchased the property from the judgment-debtor subsequent to the decree sought to implead herself in the execution proceedings and resist the execution. That application was opposed on various counts. This Court opined that Saila Bala was entitled (under Section 146 of the C.P.C) to be brought on record to defend her interest because, as a purchaser pendente lite, she would be bound by the decree against her vendor. There is some divergence of opinion regarding the question, whether a pendente lite purchaser is entitled, as a matter of right, to get impleaded in the suit, this Court in Amit Kumar Shaw v. Farida Khatoon, 2005 (4) CTC 47 (SC) : (2005) 11 SCC 403, held that:
“Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22, Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The Court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.
(Emphasis supplied)
The preponderance of opinion of this Court is that a pendente lite purchaser's application for impleadment should normally be allowed or ‘considered liberally’.”
A reading of the dictum laid down in the above judgment would show that a transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation. When the original transferor/the original defendant is not interested in the property after selling it to the transferee, pendente lite purchaser should be given an opportunity to protect his right. Therefore, when the original defendant has not come forward to defend the case properly, in order to protect his interest, the subsequent purchaser can canvass the defence available to the original defendant in the suit. Thus, the first question is answered in favour of the respondent/second defendant.
12. Coming to the next question, it is submitted by the learned counsel appearing for the plaintiff that by filing an additional written statement, the second defendant is making an attempt to take an inconsistent defence. On a perusal of the materials available on record, I find that in the original written statement filed by the second defendant, he had merely denied the case of the plaintiff. But, in the subsequent additional written statement, he is projecting a specific defence with regard to the entitlement of the share of the first defendant to the extent of 5/6th share in the suit property and it is only an additional defence and it cannot be treated as inconsistent defence from that of the defence taken in the original written statement. Moreover, adding a new ground of defence or substituting or altering a defence is permissible. In this regard, the learned counsel appearing for the second defendant has relied upon the judgment reported in 2007-1-L.W. 848 : (2006) 6 SCC 498 - Baldev Singh v. Manohar Singh, wherein the Hon'ble Supreme Court, in para 15, has held as follows:—
“15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.”
A reading of the dictum laid down by the Hon'ble Supreme Court in the above judgment would show that the inconsistent defence can be raised in the written statement although the same is not permissible in the case of the plaint. Therefore, I do not find any force in the submission made by the learned counsel appearing for the plaintiff that since already trial has commenced, the Court below ought not to have permitted the second defendant to file additional written statement. Under Order 8 Rule 9 C.P.C, wide discretion was given to the Court to give a chance to the parties to agitate their right even by raising subsequent pleas. Moreover, no restriction was imposed with regard to the receiving of the additional written statement under Order 8 Rule 9 C.P.C after commencement of the trial like in the case of amending the plaint under Order 6 Rule 17 C.P.C, where 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 the trial. In this regard, reference could be placed in the judgment reported in 2005 (5) CTC 785 - Muthusamy v. Thangaraj. In paras 8 and 9, it has been held as follows:—
“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.
9. In this case, the only grievance, if at all for the revision petitioner, as urged before me, must be that when P.W 1 was in the box, that too pending cross examination, subsequent pleadings should not be allowed. By allowing the subsequent pleadings, the right of the plaintiff is not going to be affected and it is for the defendant to prove the subsequent pleadings by letting in evidence, since in the original written statement, he has opposed the claim of plaintiff. The plaintiff can also re-examine P.W 1, if he desires, with the permission of the Court, even to deny the allegations in the written statement. Thus, it is seen, ample opportunity is available to P.W 1, to deny or accept the case projected in the additional written statement, which would go to show, no prejudice would be caused to the plaintiff, though the suit is a part heard one. Order 8, Rule 9 C.P.C does not say, after commencement of trial, no subsequent pleading shall be entertained by the Court, as said in Order 6, Rule 17, C.P.C proviso.”
Keeping the dictum laid down in the above judgment, I am of the view that under Order 8 Rule 9 C.P.C, wide discretion is given to the Court to receive the written statement or additional written statement to give opportunity to the parties to agitate the case effectively. Therefore, the rigid principle applicable in the case of amendment of plaint under Order 6 Rule 17 C.P.C cannot be applied in the case of receiving additional written statement under Order 8 Rule 9 C.P.C Hence, when there is no restriction with regard to the receiving of the additional written statement, no infirmity could be found in the order passed by the Court below in allowing the application to permit the second defendant to file additional written statement, in the interest of justice. Therefore, for the foregoing reasons, I do not find any valid grounds to interfere with the order passed by the Court below.
13. In fine, the fair and final order of the learned Subordinate Judge, Perundurai, Erode District dated 12.4.2011 made in I.A No. 327 of 2011 in O.S No. 43 of 2009 is confirmed and the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
VCJ/VCS
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