Kallampudi Narayanappa vs Kaligotla Suryanarayana and Others

Krishnaswami Nayudu, J.—The petitioner in this revision petition is the first defendant in O.S. No. 85 of 1948 on the file of the District

Munsif''s Court, Yellamanchilli, instituted for redemption of two usufructuary mortgages executed by the second defendant in favour of the first

defendant. The plaintiff claimed to be the purchaser of the properties subject to two mortgages having purchased the same from the, second

defendant. The second defendant, mortgagor filed a written statement in person on 7th July, 1948. The first defendant''s contention is that in

pursuance of an agreement of sale executed by the second defendant in his favour agreeing to sell the property he came into possession of the

property and that by virtue of Section 53-A of the Transfer of Property Act his title to the property had been perfected and that the plaintiff is not

entitled to redeem the properties. The second defendant in his statement filed on 7th July, 1948, which was filed in person had stated that he had

executed on 25th December, 1945, an agreement to sell on a, stamped paper and had taken Rs. 212 cash from the first defendant to make up the

purchase amount. Though the properties were previously in the possession of the first defendant the second defendant had delivered possession

again as per the agreement to sell and also made an arrangement to take the agreement to sell as a sale deed till he executed a registered sale deed

on a properly stamped paper. He also pleaded that even though the second defendant informed the plaintiff about the agreement to sell in favour of

the first defendant the plaintiff had encouraged him by saying that he would give the surplus money and persuaded him to execute the sale deed in

favour of the plaintiff. On 3rd January, 1949, the second defendant filed I.A. No. 7 of 1949 praying to permit him to substitute another written

statement which was then prepared under legal advice in the place of the one already filed on 7th July, 1948 and in support of this application he

filed an affidavit to the effect that the first written statement was obtained by the first defendant under fraud and misrepresentation and that,

therefore, he should be given leave to substitute the new statement filed along with the interlocutory application in the place of the one filed already.

The learned District Munsiff directed that the written statement filed along with the interlocutory application should be substituted in the place of the

written statement filed by him in person on 7th July, 1948. The interlocutory application was sought to be filed under Order 8, Rule 1 and Section

151, Civil Procedure Code. Order 8, Rule 1 relates to the filing of written statements. The written statement that had already been filed was one

under Order 8, Rule 1, Civil Procedure Code. It cannot be said that Order 8, Rule 1 would apply for the substitution of a fresh written statement in

the place of the one filed already under Order 8, Rule 1, Civil Procedure Code. It is unnecessary to consider whether the written statement could

have been filed under Order 6, Rule 17, Civil Procedure Code, as it relates to the amendment of pleadings by which the pleadings may be altered

or amended under the circumstances mentioned in the rule. There is however no provision in the CPC to enable the Court to permit the substitution

in toto of one written statement for another already filed. I am of opinion that the learned District Munsiff had no jurisdiction to pass an order

directing the substitution of the new written statement filed along with the interlocutory application in the place of the one filed already under Order

8, Rule 1, Civil Procedure Code. The original statement filed in the first instance on 7th July, 1948, will remain on the file. It is always open to the

second defendant at the time of the trial of the suit to state the circumstances which he now alleges under which the first written statement which he

filed in person was presented. The revision petition is allowed with costs.