(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order and decretal order passed in I.A. No.10551/2009 in O.S. No.2470/2008 dated 25.2.2010 on the file of the II Additional City Civil Court Chennai (presently at V Fast Track Court.).)
1. The Defendants 1, 2, 5 and 6 in O.S. 2470 of 2008 on the file of the II Additional City Civil Court, Chennai are the Petitioners in the above Civil Revision Petition.
2. The Suit was filed by the First Respondent herein seeking partition of the suit properties. The Defendants 1 to 4 filed separate Written Statements and the Written Statement filed by the Second Defendant was adopted by Defendants 5 and 6. At the stage, when the Defendants witness was in the box the Petitioners herein filed I.A. 10551 of 2009 under Order 8, Rule 9 Code of Civil Procedure seeking leave to file Additional Written Statement. The said Petition was opposed by the Plaintiff and on a consideration of the rival submissions, the Trial Court dismissed the Petition. Being aggrieved by that the present Revision is filed.
3. Heard both sides.
4. The learned Counsel for the Petitioners submitted that the Petitioners due to oversight and inadvertence had failed to mention the actual position in their Written Statement which necessitated the filing of the present Petition seeking the relief to file Additional Written Statement. Though in the grounds, it has been contended that the Court below has wrongly arrived at a conclusion that the Petitioners have already admitted the Plaintiff’s 1/7th share in the Written Statement and estopped from denying the same, the learned Counsel has not raised that plea.
5. The learned Counsel submitted that the Petitioners are illiterates and they were not properly guided by their earlier Counsel appearing for them and the present Counsel has pointed out the necessity to file the Additional Written Statement and that is the reason why, the present Petition came to be filed.
6. The learned Counsel further submitted that only a legal contention is sought to be raised, which will not in any way prejudice the Respondents.
7. The learned Counsel further submitted that the Petitioners also raised the question of valuation of the suit property and contended that, the Suit property has been under-valuated and it is not properly valuated and the court below will not have jurisdiction.
8. The learned Counsel for the First Respondent submitted that in a Written Statement filed by the First Defendant in paragraph 3, it is stated as follows:
“3. At the outset, this Defendant admits that the Plaintiff is entitled for 1/7th share in the Schedule A, B and C properties and this Defendant is always ready and willing to settle the matter provided the Plaintiff must be reasonable in claiming her share and effecting the partition.”
Again, in the same Written Statement, in paragraph 8, the First Defendant stated that even now, the Defendant is ready and willing for partition of Schedules A to C properties if the Plaintiff comes to terms on reasonable grounds.
9. The learned Counsel further submitted that the Second Defendant in his Written Statement in paragraph 3 has stated as follows:
“3. This defendant admits that the Plaintiff is entitled for 1/7th share in the Schedules A, B and C properties and this Defendant is always ready and willing to settle the matter provided the Plaintiff must be reasonable in claiming her shares and effecting the partition.”
The Third Defendant in his Written Statement; has also stated the very same thin as follows:
“This Defendant admits averments mentioned in Para 5 of the Plaint and further admits that she also entitled to 1/7th share of the properties owned by her father late Pandurangan Chettiar apart from mesne profits.”
10. But according to the Counsel, in the Additional Written Statement, it is sought to be contended that the Plaintiff got married on 13.3.1989 and in fact Act 1 of 1990 came into force only on 25.3.1989 and the Plaintiff got married much before the Act. Hence, the provisions of Hindu Succession (Tamil Nadu Amendments) Act, 1989 shall not be applicable for the Plaintiff to claim any equal share along with other male co-parcenary members.
11. The learned Counsel submitted that this plea is destructive of the admissions made by the Defendants in their Written Statement. Therefore, such a plea cannot be allowed to be raised.
12. The learned Counsel for the First Respondent submitted that the question of jurisdiction and the question of valuation of the Suit property and the jurisdiction aspect should have been raised at the earliest stage and the Petitioners cannot be allowed to raise such pleas at the belated stage. In support of his contentions, the learned Counsel referred to the following decisions:
(1) Gautam Sarup v. Leela Jetly and Others, 2008 (7) SCC 85; and
(2) R.S. Nagarajan v. R.S. Gopalan and others, 2007 (1) CTC 586.
13. In Gautam Sarup v. Leela jetly and Others, 2008 (7) SCC 85, the Apex Court has laid down as under:
“28. What, therefore, emerges from the discussions made herein before 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.’
14. In R.S. Nagarajan v. R.S. Gopalan and others, 2007 (1) CTC 586, the learned Judge referring to a number of decisions laid down as follows:
“When a plea was available to the party and when it has not been raised, it is not open to the party to raise it by way of Additional Written Statement.”
In the above said decision, it was also held that the Defendant cannot raise mutually destructive pleas.
15. I have considered the aforesaid submissions made an either side and perused the materials available on record.
16. The facts narrated above mates it very clear that the Defendants have admitted the right of the Plaintiff to claim 1/7th share in the Suit property. Having so admitted in the Written Statement filed by them it is not open to them to raise a destructive plea in the Additional Written Statement denying the very right of the Plaintiff to claim 1/7th share in the suit property. Further, the Defendants could have raised the plea, which was available to them at the earliest stage. Having not done so, at this stage, when the trial is about to conclude, they cannot be allowed to raise such a plea.
17. As has been laid down by the Apex Court in Gautam Sarup v. Leela Jetly and Others, 2008 (7) SCC 85, if the plea now sought to be raised in the Additional Written Statement is allowed to be raised, that will amount to allowing the Defendants/Petitioners to raise mutually destructive plea. Therefore, the same cannot be allowed. It may be that the Defendants are entitled to take alternative plea, but such alternative plea cannot be mutually destructive. In the considered view of the Court, the plea sought to be raised in the Additional Written Statement amounts to mutually destructive of the plea taken in the Written Statement. Therefore, the contention put forward by the learned Counsel for the Petitioners cannot be sustained.
18. Regarding the valuation of the suit property and the jurisdiction aspect, such a plea was available to the Petitioners even at the earlier point of time, they have not raised it in the Written Statement and hence, it is not open to them to raise it in the Additional Written Statement.
19. The reasons stated by the Court below for rejecting the I.A., cannot be faulted with and for the aforesaid reasons, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected M.P. No.1 of 2010 closed.