Ramaswami Naidu vs Pethu Pillai

(1) The defendant in O. S. No. 127 of 1962 on the file of the District Munsif''s court, Turaiyur is the petitioner herein. He files this revision petition

against the order of the learned District Munsif, Turaiyur in I. A. No. 84 of 1963 in the aforesaid suit, an application filed under O. VIII R. 9 C. P.

C. seeking to file an additional written statement which prayer was refused by the learned District Munsif.

(2) The plaintiff alleged that he was the owner of the suit property and had perfected title by adverse possess in against the co-sharers. He had

leased the said property to the defendant, who had put-up a hut on the leased portion. The lease period had terminated and the plaintiff filed the

suit for declaration of his title and for recovery of possession. Originally the defendant pleaded that the plaintiff had no right to sue without

impleading the other co-sharers. Subsequently, the defendant filed a petition to file an additional written statement in which he claimed to have

purchased the site on which he had put up the hut from one of the co-sharers, subsequent to the date of the plaint. This petition was filed under O

VIII R. 9 C. P. C. The learned District Munsif refused to receive the additional written statement and dismissed the petition. The defendant has

filed this civil revision petition against the above order.

(3) Learned counsel for the petitioner referred to the decision of a Full Bench of this court in R.M. Subramaniam Vs. N. Sundaram Iyer, where it

was observed:

Broadly and generally stated the rule is that the rights of parties have to be determined and pronounced upon as on the date of commencement of

the lis'' before the court. This is not however a stubborn or inflexible rule and it has to give way in instances where unless the subsequent events are

considered and taken into account grave injustice would result or the decision of the court would become a mockery. The discretion of the court

under its inherent powers to adjust the rights of parties on the basis of events after the starting of the action is well recognised and accepted as a

rule of justice equity and good conscience

Per contra, reliance was placed by the respondent on a decision of the Lahore High Court in Mehnga Das v. Maya Singh, AIR 1937 Lah 795

where it has been observed that O R. 5 permits merely a further and better statement of the nature of the claim but it would not permit the

submission of new material altogether based on an entirely different cause of action as it would be repugnant to O. VI R 7, which states that no

pleading shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings

of the party pleading the same. This decision is not authority for a case where an additional pleading is sought to be raised by way of amendment

under O VIII R. 9 C. P. C. In Douglas v. Collector of Benares 5 Moo Ind App 271 it was observed:

It is much to be regretted if the practice of the court be such as to warrant what has here taken place; if a defendant after having put in an answer

stating facts, which are within his own knowledge or which he has the full means of ascertaining may afterwards on finding that he has no defence

as the case stands, do what the defendant has here been permitted to do; if he is at liberty without any affidavit of the circumstances without any

explanation of the nature of the error which has been committed or in what it has originated, or what is the correction to be made or what the

omission to be supplied; to made a totally new case and state facts at direct variance with the statement in the first answer and of course

completely change the issue in the cause"".

(4) No doubt, the present pleading of the defendant is at variance with his original pleading, but it is based upon circumstances that had taken place

after the suit was filed. If the sale by a co-sharer to the defendant after the suit was filed, was hit by is pendent, it will be open to the plaintiff to file

a reply statement making such an allegation. But it appears to me that there is no absolute rule debarring the court from permitting the parties to

take into account, events subsequent to the filing of the suit, if that will be in the interests of justice, and if it will enable a final adjudication to be

made on the dispute and save multiplicity of suits. As already observed, the plaintiff has got his remedy to file a reply statement attacking the

additional grounds now put forward. In view of the above considerations, I am of the opinion that the additional written statement should be

permitted to be received on terms, and the plaintiff given an opportunity to meet it by filling a counter. The application will be allowed on condition

that the defendant pays the plaintiff Rs. 50 as costs irrespective of the result of the suit within 15 days of the receipt of this order in the lower court.

In the circumstances, the civil revision petition is allowed as above. There will be no order as to costs in this petition.

(5) Revision allowed.