Allowed

R.Rathinavelu v. P.a.Sankaramani

Madras HC26 Jul 2021CRP/4312/2018

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court of Madras allowed leave to file an additional written statement after examining the facts that the alleged sale deeds were vitiated by bad cheques, finding no prejudice to respondents as they had taken similar pleas.

What did the court decide?

The order dismissing the petition seeking leave to file an additional written statement is set aside and the trial court is directed to dispose of the suit within six months.

R.Rathinavelu Vs P.a.Sankaramani — Specific Performance | Madras HC (2021)

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 26.07.2021

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Coram:

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THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

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CRP(PD).No.4312 of 2018
AND
CMP.No.23590 of 2018
1.R.Rathinavelu
2.P. Rajamanickam
3.P.Kumar
4.Rani ... Petitioners
Vs.
1.P.A.Sankaramani
2.P.S.Narayanan
3.S.Prasad
4.P.A.Seetha
5.A.Gowri
6.K.S.Venugopal
7.K.N.Krishnan
8.S.Nandagopal
9.K.V.Sundaram
(Represented by power agent A. Ramakrishnan)
10.Jagadeeswaran
11.C.Ramakrishnan
12.Dhanalakshmi
13.Minor.Naveen Rajan
14.Minor Deepika
(Respondents 13 & 14 are
represented by R-12/mother/Dhanalakshmi) ...Respondents

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https://www.mhc.tn.gov.in/judis/

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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PRAYER: Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, to set aside the order of the learned First Additional Subordinate Judge, Coimbatore in I.A.No.645 of 2018 dated 20.09.2018 confirming the fair and decreetal order in O.S.No.359 of 2011.

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For Petitioners : Mr.C.R.Prasanan For Respondents : Mr.D.Ravichander - R1 to R9

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This Civil Revision Petition has been filed challenging the

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order passed by the learned First Additional Subordinate Judge, Coimbatore in I.A.No.645 of 2018 dated 20.09.2018 confirming the fair and decreetal order in O.S.No.359 of 2011, thereby dismissing the petition seeking leave to file an additional written statement. The petitioners are the defendants 1 to 3 and 10. So, the respondents 1 to 9 are the plaintiffs.

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While pending suit, the petitioners sought for leave to file an

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additional written statement which was denied by the court below and aggrieved by the same, the present petition is filed.

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https://www.mhc.tn.gov.in/judis/

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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The learned counsel for the petitioners would submit that the

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suit has been filed seeking several declarations and permanent injunction

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in respect of the suit property. Further, they prayed for a declaration that the suit property should be declared as a common road. On receipt of suit summon, the petitioners filed a written statement on 05.03.2012 and also made a counter claim for the suit property. After cross-examination of PW1, the petitioners came to know about the properties with regard to

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the sale deeds executed by the 5^th defendant in favour of the 6^th defendant. Therefore, the petitioners filed a petition seeking leave to file an additional written statement. The relief prayed by the plaintiffs as well

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as the petitioners are one and the same, to declare the sale deed executed

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by the 4^th defendant in favour of the defendants 5 and 6 as null and void.

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There is absolutely no prejudice would be caused to the respondents 1 to

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9 herein if the petitioners are allowed to file their additional written

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statement. He further submitted that by way of an additional written statement, he wanted to pray specific plea on 13.01.2010. The 4^th

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defendant entered into a varthamana agreement with the 5^th defendant agreeing to sell a portion of the suit property subject to terms and conditions. As as per the terms and conditions, the 5^th defendant agreed

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https://www.mhc.tn.gov.in/judis/

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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to purchase a portion of the suit schedule property and 4^th defendant

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undertook to execute a sale deed in favour of the defendants 5 and 6 on acceptance of the post-dated cheques issued by the 5^th defendant towards the sale consideration. Accordingly, sale deeds were executed in favour of the defendants 5 and 6 and the cheques were presented for collection.

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The same were returned dishonoured. As per the agreement, if the

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amount not realised, then sale deeds would revoke automatically. So,

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these are all the defences to be included in the additional written statement.

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In support of his contention, he also relied upon the following

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judgments:-

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(i) 2007 (3) CTC 400 (Usha balashaheb Swami and others Vs. Kiran Appasao Swami and others);

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(ii) 2014 SCC Online Mad 6785 (Boopathy and another Vs. Palaniammal) and

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(iii) 2016 (4) CTC 750 (Devendran and others Vs.

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P.v.Palani).

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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Per contra, the learned counsel for the respondents 1 to 9

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submitted that the suit has been filed in the year 2011 and the first written statement was filed as early as on 05.03.2012. Even at the time of filing the written statement, the petitioners had the present defence and even then, they did not bring it in the earlier written statement. The present petition has been filed after examination of PW1, that too, after 6 years from the date of the original written statement. He further submitted that during pendency of the suit, the alleged gift deeds have been executed on the basis of the sale deed executed by the 4^th defendant in favour of the defendants 5 and 6. The alleged gift settlement deeds are sham and nominal and not binding the respondents 1 to 9 herein. After examination of PW1, the petitioners herein, intended to introduce a new plea that is not permissible under any law. Therefore, the court below had rightly dismissed the petition and nothing warrants to interfere by

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this court.

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In support of his contention, he relied upon the judgments

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reported in

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1) 2007 (1) CTC 586, (R.S.Nagarajan Vs.

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R.S. Gopalan & Others);

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https://www.mhc.tn.gov.in/judis/

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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2) 1999 (3) CTC 52, (Subramanian & Others Vs. Jayaraman ) and

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3) 2005 (1) CTC 563, (Devanbu Vs. Sundara Raj

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& Others).

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Heard Mr.C.R.Prasanan, learned counsel for the petitioners and

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Mr.D.Ravichander, learned counsel for the respondents R1 to R9.

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The petitioners have filed a petition seeking leave to file an additional written statements in the suit. Admittedly, the petitioners

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already filed the written statements on 05.03.2012 and after crossexamination of PW1, the present petition has been filed seeking

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permission to receive an additional written statement.

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On perusal of the additional written statement sought to be filed revealed that as early as on 13.01.2011, the 4^th defendant had entered

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into a varthamana agreement with the 5^th defendant, who agreed to sell a

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portion of the schedule mentioned property subject to the terms and conditions. Accordingly, the 4^th defendant received the post-dated 6/10

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https://www.mhc.tn.gov.in/judis/

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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cheques issued by the 5^th defendant and executed the sale deeds. Thereafter, when the cheques were presented for collection, they were returned dishonoured for the reason “funds insufficient”. As per the agreement, the sale deeds are vitiated for want of sale consideration. Therefore, on the strength of the alleged sale deeds, the gift deeds have been executed in favour of Perur Chettipalayam Town Panchayat by the

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defendants 5 and 6.

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declaring those sale deeds as null and void on different set of facts. The defendants 1 to 3 and 10 also sought for a declaration declaring those sale deeds as null and void on different set of facts. Therefore, the additional written statement sought for by the petitioners would not

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cause any prejudice to the respondents 1 to 9 herein.

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judgment reported in

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2007 (3) CTC 400 - Usha balashaheb Swami and others Vs. Kiran Appasao Swami and others);

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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The Hon'ble Supreme Court of India has held in paragraph Nos.18, 19 and 20 that the defendants are entitled to their respective shares and also to plead inconsistent stand by way of additional written statement and also by way of amendment.

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In the case on hand, as stated supra, the petitioners by way of

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filing an additional written statement to support their counter claim, the sale deeds which were executed by the fourth defendant in favour of the defendants 5 and 6 are vitiated by non-payment of valid consideration. It would not cause any prejudice to the respondents 1 to 9. Therefore, the

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above judgments cited by the learned counsel for the petitioners is squarely applicable to the case on hand.

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In so far as the judgments cited by the learned counsel for the

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respondents 1 to 9 are concerned,the new pleas cannot be introduced.

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It is an admitted fact that the petitioners as well as the

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respondents 1 to 9 have taken similar pleas for declaration declaring those sale deeds executed by the fourth defendant in favour of the defendants 5 and 6 are null and void. Therefore, it would not amount to

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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introduction of any new pleas and as such, the judgments cited by the learned counsel for the respondents are not helpful to the case on hand.

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In view of the above, the Civil Revision Petition is allowed and the order dated 20.09.2018 passed in I.A.No.645 of 2018 in O.S.No.359 of 2011 on the file of the First Additional Subordinate Court, Coimbatore, is set aside. On receipt of the additional written statement, the trial court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order. However, the respondents 1 to 9 are also permitted to file a reply statement, if any. No costs. Consequently, connected miscellaneous petition is closed. 26.07.2021 Index:Yes / No Internet:Yes/No Speaking Order/Non-Speaking Order gv To

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The First Additional Subordinate Judge, Coimbatore

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CRP(PD).No.4312 of 2018 & CMP.No.23590 of 2018

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G.K.ILANTHIRAIYAN.,J.

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