IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09-03-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.No.825 of 2010 and M.P.No.1 of 2010 1.P.S.Karunakaran 2.P.S.Kumar .. Petitioners. Versus M/s.Madras Race Club, Represented by Ms.Aruna, Officer In-Charge (Legal), Guindy, Chennai-600 032. .. Respondent. PRAYER: Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order, dated 29.1.2010, passed in I.A.No.1881 of 2010 in O.S.No.353 of 2006, pending on the file of the III Assistant Civil Court at Chennai and permit the petitioners to file an additional written statement. For Petitioners : Mr.S.Karunakaran For Respondent : Mr.L.Dhamodaran O R D E R This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 29.1.2010, made in I.A.Nno.1881 of 2010, in O.S.No.353 of 2006, on the file of the III Assistant City Civil Court, Chennai, and to permit the petitioners to file an additional written statement. 2. It has been stated that the respondent had filed O.S.No.353 of 2006, on the file of the III Assistant City Civil Court, Chennai, for the following reliefs: "a) directing the first and second defendants to re-deliver the vacant possession of the encroached portion of the property admeasuring 5 ground 357 sq.ft. comprised in T.S.No.1(Part), Block No.13, morefully described in the "B" Schedule hereunder to the plaintiff. b) for mandatory injunction restraining the Defendants 1 and 2 to demolish and remove the construction put-up in the southern side of the plaint "A" schedule property morefully described in the schedule B hereunder. c) for consequential permanent injunction restraining the first and second defendants, their men, servants, agents, subordinates or persons claiming through them from encumbering or letting out the same for lease to any third parties or from putting-up any construction and/or carrying on any construction activity in the Schedule "B" property. d) (for mandatory injunction directing the Defendants 3 and 4 to take appropriate legal action including demolition of the unlawful and illegal construction put-up in the "B" Schedule property) (Prayer D given-up for by Memo, dated 2.8.2006)" 3. The respondent had valued the suit in the following manner. In respect of the prayer, in Clause (a) at Rupees 1 lakh, for which a sum of Rs.750/- had been paid as the Court Fee, under Section 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. For the prayers in Clauses (b), (c) and (d), at Rs.1,000/-, for which a sum of Rs.75.50 each had been paid, under Section 27(c), of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 4. It has been stated that, as the prayer in Clause (a) is for recovery of possession and as the respondent had valued it, under Section 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as `the Act), instead of valuing the same, under Section 30 of the Act, the petitioners had filed an interlocutory application, in I.A.No.22833 of 2009, in O.S.No.353 of 2006, seeking to reject the plaint filed by the respondent, on the ground of gross under valuation. The said application had been dismissed by the trial Court. 5. Challenging the said order, the petitioners had preferred a civil revision petition, in C.R.P.(PD) No.40 of 2010. However, due to inadvertence, the petitioners did not raise the issues relating to under valuation and the calculation and payment of court fee under the wrong provision of law, in the written statement filed by the petitioners. Therefore, while the said civil revision petition was pending before this Court, the petitioners had filed an interlocutory application, in I.A.No.1881 of 2010, seeking permission of the trial Court to file an additional written statement raising the said issues. The trial Court, in a hurried manner, had recorded the chief examination of P.W.1, to show that the trial in the suit, in O.S.No.353 of 2006, had commenced. 6. Even before this Court had passed an order in the civil revision petition, the trial Court, by its order, dated 29.1.2010, had dismissed the application filed by the petitioners for receiving the additional written statement. This Court, by its order, dated 16.2.2010, had dismissed the civil revision petition filed by the petitioners. The trial Court had also dismissed I.A.No.1881 of 2010, by its order, dated 29.1.2010. The present civil revision petition has been preferred against the said order of the trial Court. 7. The learned counsel appearing on behalf of the petitioners had submitted that the trial court had passed the impugned order, dated 29.1.2010, mechanically, without application of mind. He had also submitted that the trial court is not justified in stating that the affidavit filed, in I.A.No.1881 of 2010, did not disclose the grounds sought to be raised in the additional written statement. The trial court ought to have considered the fact that there is no bar for raising a plea in the written statement, which had been disallowed by the court. The request for filing of an additional written statement should not have been rejected by the trial court, at the threshold. 8. The issues sought to be raised in the additional written statement could have been decided, on merits, at the time of the trial in the suit. The trial court ought to have seen that there was a bona fide mistake committed by the petitioners in not raising the issues of valuation of the suit and the Court fee to be paid thereon. Even if there are inconsistent pleas they should be decided during the trial of the suit. The court below had erred in holding that the interlocutory application filed by the petitioners, in I.A.No.1881 of 2010, was belated in nature. In fact, the said application had been filed, as soon as the defect had been found by the petitioners. 9. Per contra, the learned counsel appearing on behalf of the respondent had submitted that the petitioners had filed the interlocutory application, in I.A.No.1881 of 2010, at a belated stage, on 21.1.2010. The proof affidavit had been filed by the plaintiff, on 6.11.2009, as evidence of P.W.1. The suit had been adjourned to 10.11.2009, for marking of documents and for cross examination. Thereafter, the proceedings in the suit had continued on various dates. The said suit had been listed on more than 35 occasions and it is in the final stages. Taking into consideration, the facts and circumstances of the case, the trial Court had passed the order, dated 29.1.2010, dismissing I.A.No.1881 of 2010, filed by the petitioners stating that the reliefs sought for by the petitioners are without merits and that the petitioners have approached the Court, at a belated stage. He had also held that the issues arising for consideration in the interlocutory application filed by the petitioners can be decided in the suit. He had also stated that when the application filed by the petitioners, for the rejection of the plaint, had been dismissed, the petitioners have filed the present application to reagitate the matter, in the garb of making a request for filing an additional written statement. 10. The learned counsel appearing on behalf of the respondent had relied on the following decisions in support of his contentions: 10.1) In Murthi Gounder V. Karuppanna (AIR 1976 Madras 302), while rejecting the request of the defendant, for filing an additional written statement, this Court had held as follows: "This is a case where nearly two years after having filed his written statement, the first defendant had acquired some further information and wanted to set up a case which is different from the case which he had originally set up in his written statement. Considering the stage at which such an application has been filed, undoubtedly, prejudice would be caused to the plaintiff who will now be forced to file a reply statement and as a consequence thereof, fresh and different issues will have to be framed and the trial would have to begin once over again." 10.2) In Modi Spg. And Wvg. Mills V. Ladha Ram and Co. (1976) 4 SCC 320, the request for amendment of the written statement had not been allowed when the effect of such amendment would be to displace the plaintiff's suit by depriving him of a valuable right, which had already accrued to him. It had also been held that an entirely different and new case cannot be substituted by way of an amendment of the written statement. 10.3) In Heeralal V. Kalyan Mal and others (1998) 1 SCC 278, it had been held that, withdrawal of the admission by the defendant, by way of an amendment of the written statement, cannot be allowed when the issues had been framed by the trial Court on the basis of the admission by the defendant. 10.4) In N.Srinivasan Vs. Muthammal (1998(II) CTC 94), it had held that an application, under Order VIII Rule 9, for filing an additional written statement, cannot be allowed, if it seeks to raise inconsistent or alternative pleas, depriving the plaintiffs the benefit of statutory presumptions. The request for filing an additional written statement can also be rejected, if it is made belatedly and without bona fides. 10.5) In Devanbu V. Sundara Raj (2005(1) CTC 563), it has been held that when a defendant had waived the defence of res judicata by not raising it in the original written statement, he cannot raise it thereafter, by way of an additional written statement. 10.6) In R.S.Nagarajan V. R.S.Goapalan and others (2007(1) CTC 586), it has been held that the defendant cannot introduce a new case or mutually destructive pleas, by way of an additional written statement. 10.7) In Tajdeen V. Abdul Muthalif (2009(3) MLJ 959), it has been held as follows: "Only on sound reasons enumerated under Order 8 Rule 9 of the Civil Procedure Code, Court can grant leave to file additional written statement. Defendant cannot be permitted to file additional written statement by taking an antithetical stand, quite contrary to that taken in the written statement, after a major part of the trial was over." 11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available and in view of the cases cited by the learned counsel for the respondent, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to interfere with the order, dated 29.1.2010, made in I.A.No.1881 of 2010, in O.S.No.353 of 200.6 12. It is clear from the records available before this Court that the petitioners have filed I.A.No.1881 of 2010, for filing an additional written statement, belatedly. The trial having commenced in the suit, in O.S.No.353 of 2006, the request of the petitioners, for filing an additional written statement, cannot be allowed. In view of the decisions cited supra it is clear that the petitioners in the present civil revision petition, who are the defendants in the suit, in O.S.No.353 of 2006, pending on the file of the III Assistant City Civil Court, Chennai, cannot be permitted to raise inconsistent pleas in the additional written statement sought to be filed by them, nor can they be allowed to raise the issues relating to the valuation of the suit and the court fee to be paid thereon, at this stage. 13. Since, the trial had commenced in the suit, in O.S.No.353 of 2006, the trial court had rightly rejected the application filed by the petitioners, in I.A.No.1881 of 2010, for filing an additional written statement. The trial court had found that the interlocutory application filed by the petitioners, in I.A.No.1881 of 2010, is belated in nature and that it had been filed only to delay the proceedings in the suit. As such, the present civil revision petition filed by the petitioners is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Index:Yes/No 09-03-2010 Internet:Yes/No csh For Orders on 9-03-2010 M.JAICHANDREN J. csh C.R.P.No.825 of 2010 09-03-2010