M. Subbaiah vs P. Arumugakani and Others

M. Jeyapaul, J.—The application is filed seeking permission to file additional written statement in the civil suit.

The applicant is the defendant who faces a trial in a case launched by the respondents/plaintiffs seeking specific performance of the agreement of

sale. At the stage where the plaintiffs evidence was closed the applicant has come forward with the application seeking the aforesaid relief.

The applicant has contended that the deceased plaintiff brought the agreement of sale typed and obtained his signature. He was, in fact, not

conversant with the drafting of the agreement with the little knowledge in Tamil-. A xerox copy of the document of title to the suit property was

handed over to the deceased plaintiff. The agreement of sale reads that the applicant/defendant is the owner not only of the land but also of, the

building. In reality, the applicant/defendant has only possessory right in respect of the site which belongs to Wakf Board. The predecessor-in-title

of the applicant/defendant purchased only the possessory title in the land under the sale deed dated 31.5.1996. The introduction of amendment to

Section 22-A of the Registration Act, 1908 prohibits conveyance of properties assigned to or held by the Tamil Nadu Wakf Board. The contract

of sale in respect of the land has become impossible of performance. Therefore, the applicant/defendant seeks permission to file additional written

statement.

In the counter filed by the respondents/plaintiffs, they have contended that the applicant is not justified in filing the additional written statement at

this distance of time. The applicant is attempting to invent a new case to suit his convenience without any foundation therefor. The respondents

deny the averment that a xerox copy of the document of title to the property was handed over to the deceased plaintiff. The applicant is now

attempting to take a destructive plea which is impermissible in law. The applicant cannot be permitted to set up title in favour of a third party. The

sale deed referred to u/s 22-A of the Registration Act has no nexus to the transaction and in law, the registering authority cannot refuse registration

of any sale deed as it is opposed to the Constitution of India. Therefore, the applicant cannot now press into service the amended provisions of

Section 22-A of the Registration Act to avoid any decree being passed in favour of the plaintiffs pursuant to the lawful agreement. The respondents

pray that the application may be dismissed.

The point that arises for determination is whether the applicant can be permitted to file additional written statement under Order VIII Rule 9 of

the Code of Civil Procedure.

Learned Counsel for the applicant would submit that the sale deed executed by the vendor of the applicant refers to the fact that the Wakf

Board is the owner of the site and that the vendor who had got possessory title over the property conveyed the same along with the superstructure

put up by him to the applicant. Though the agreement of sale entered into between the parties refers to the fact that the applicant is the owner of

not only of the building but also of the site, the applicant may be directed to putforth the real fact before the court in the background of the sale

deed standing in the name of the vendor of the applicant. It is his further submission that in the written statement, the respondent has not taken a

stand that he is the owner of the site also. Though the application is filed at the stage where the evidence on the side of the plaintiffs was over, in the

interest of justice, the applicant will have to be permitted to file additional written statement to bringforth the real facts before the court for the

purpose of complete adjudication of the contentious issues arisen in this case.

Learned Counsel for the respondents/plaintiffs would contend in reply that the applicant who has set up title in himself in the agreement of sale

entered into between the applicant and the deceased plaintiff has come out with a mutually destructive plea in the additional written statement that

he is not the owner of the site which was agreed to be conveyed to the deceased plaintiff. An inconsistent plea, if any, can be permitted to be taken

by way of additional written statement but, a mutually destructive plea cannot be permitted to be introduced by the applicant. Referring to the stage

where the matter stands, the learned Counsel for the respondents/plaintiffs would submit that the applicant, having waited for a longer time, has

come forward with the untenable plea at the stage where the plaintiffs'' evidence was closed and that therefore, such a plea at this distance of time

cannot be entertained by this Court. It is his further submission that whatever possessory right the applicant owns, can very well be conveyed by

the applicant at the risk of the respondents. It is further submitted that the Honourable Supreme Court has chosen to virtually nullify the introduction

of amendment to Section 22-A of the Registration Act by the State of Rajasthan in the guise of public policy. In view of the above, the registering

authority has no authority to reject the sale deeds presented for registration on the ground that the transaction is against the public policy. For all

these reasons, the learned Counsel for the respondents/plaintiffs would submit that the application filed at this distance of time may be dismissed.

It is true that in the agreement of sale marked during the course of evidence, the applicant, having described himself as the owner not only of the

site but also of the superstructure, agreed to convey the suit property to the deceased plaintiff for a total consideration of Rs. 6,00,000/=. Based

on such an agreement of sale, the deceased plaintiff laid a suit as against the applicant herein. On a careful perusal of the written statement, it is

found that the applicant has not specifically averred that he is the owner of the site of the property agreed to be conveyed to the deceased plaintiff.

The applicant has woken up only during the course of cross examination of PW1, who was in the box, about the averment in the agreement of sale

that he is the owner of the site also. Of course, the applicant has been filed late in point of time. Delay alone cannot be. the sole ground to reject

the valid plea backed with substantial material. The additional written statement can be received at any stage of the case in order to determine the

contentious issues involved in this case.

Inasmuch as the applicant had not set up title in respect of himself in the written statement, the plea now taken up that he is not the owner of the

site cannot be termed as a destructive plea. Just because the applicant has taken a stand in the agreement of sale that he is the owner of the site,

the court cannot restrain him from filing additional written statement projecting a plea based on the title deed in his name that he is not the owner of

the site. Only in case he has set up a specific plea in the written statement that he is the owner of the site, he cannot be permitted at a later stage to

take a destructive plea that he is not the owner of the site.

In the authority reported in Ramachandra Rao v. A. Mohideen 2000-1-LW 420, this Court has held that the discretion to permit the applicant

to file additional written statement can be exercised depending on the facts and circumstances of each case, But, the party who seeks leave has to

explain as to why such contention was not raised in the earlier pleadings. Of course, the court, while exercising such a discretion will have to

consider the conduct of the party, the stage of the litigation, the delay that has occasioned and the hardship that may be caused to the opposite

party.

That was a case where no explanation whatsoever was putforth for the delay in filing Additional Written Statement. In the instant case, the

applicant has specifically come out with an explanation that the mistake crept in the agreement of sale was brought to his knowledge only when the

cross examination of PW1 was going on. It is not a case where the applicant has embarked upon a dilatory tactics to delay the process of trial.

The moment the trial was taken up, the applicant has chosen to cross examine the witness examined on the side of the respondents. Further, in this

case, the court finds that the stunning fact that the applicant is not at all the owner of the site will have to be brought to light to determine whether

the applicant has got any right to convey the site also in favour of the respondents. Therefore, the above ratio will not apply to a case where an

explanation for the delay is offered.

In Chandra and 2 Ors. v. Ranganathan 2005 4 LW 482, this Court has observed that the defendants cannot be permitted to divert the process

of trial by puttingforth a new set of facts at the stage where the plaintiffs'' evidence was over. It appears that in the above case, the defendant

attempted to set up an agreement with a newly impleaded party belatedly, having been mute when such a party was impleaded in the suit.

Here, in the instant case, the applicant has come forward with this application immediately on coming to know of the incongruity as to title

found in the agreement of sale entered into between himself and the deceased plaintiff. The court will have to see whether in the facts and

circumstances of a particular case, an additional written statement can be permitted to be filed. The fact situation that emerges in this case warrants

in the interest of justice, grant of leave to file additional written statement.

In the authority reported in Nagarajan, R.S. v. R.S. Goapalan 2007 (1) CTC 586, it has been held that the defendant cannot be permitted to

introduce a new case or a mutually destructive plea by way of additional written statement. As already pointed out by this Court, here is a case

where the defendant has not specifically pleaded in the written statement that he is the owner of the site. Therefore, the question of introduction of a

destructive plea by way of additional written statement does not arise.

Of course, the Honourable Supreme Court in State of Rajasthan and Others Vs. Basant Nahata, , has chosen to declare the amendment to

Section 22-A of the Registration Act, 1908 introduced by the State of Rajasthan as ultra vires under Articles 14 and 246 of the Constitution of

India. In this case, the amended provision u/s 22-A of the Registration Act, 1908 introduced by the State of Tamil Nadu will have to be tested in

the light of the aforesaid judgment during the course of trial.

The authorities referred to above would go to show that the defendant can be permitted to take an inconsistent plea by way of filing additional

written statement, but, he cannot take a destructive stand by filing additional written statement. Further, the defendant can, at any point of time,

during the course of proceedings, file an additional written statement. Just because an application is filed at a belated stage, the court cannot reject

the meritorious contentions of the applicant seeking permission to file additional written statement. The hardship caused to the respondents on

account of the belated application can very well be compensated by awarding cost.

In the result, the application seeking permission to file additional written statement will be allowed on payment of cost of Rs. 1000/= by the

applicant to the respondents on or before 29.6.2007 failing which the application will stand dismissed. Post the matter on 2.7.2007.