*THE HON’BLE SRI JUSTICE D.S.R.VARMA +C.R.P.Nos.5096 of 2008 and 1284 of 2009 % 30-7-2010 CRP.No.5096 of 2008: # Viswanadhuni Anjaneyulu …Petitioner Vs. $ Kothamasu Venkata Pitchaiah … Respondent ! Counsel for the petitioner : Sri V.S.R. Anjaneyulu Counsel for the Respondent: Sri V.Surender Reddy CRP.No.1284 of 2009: # Viswanadhuni Anjaneyulu …Petitioner Vs. $ Kothamasu Venkata Pitchaiah … Respondent ! Counsel for the petitioner : Sri V.S.R. Anjaneyulu Counsel for the Respondent: Sri V.Surender Reddy < Gist: > Head Note: ? Cases referred: 1. 2010 (1) SCJ 919 2. AIR 2007 SC 1663 3. (2006) 6 SCC 498 4. (2001) 8 SCC 115 5. (2004) 6 SCC 71 THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION Nos.5096 of 2008 and 1284 of 2009 Date: 30.07.2010 C.R.P.No.5096 of 2008 : Between: Viswanadhuni Anjaneyulu … Petitioner and Kothamasu Venkata Pitchaiah … Respondent C.R.P.No.1284 of 2009 : Between: Viswanadhuni Anjaneyulu … Petitioner and Kothamasu Venkata Pitchaiah … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION Nos.5096 of 2008 and 1284 of 2009 ORAL COMMON ORDER: Since both these Civil Revision Petitions arise out of the interlocutory applications filed consequent on the dismissal of one after the other in the same suit, I deem it appropriate to dispose of the same by this common order. 2. Heard learned counsel appearing for the petitioner-defendant as well as learned counsel appearing for the respondent-plaintiff. 3. C.R.P.No.5096 of 2008 is filed challenging the order, dated 11.9.2008, in I.A.No.398 of 2008 in O.S.No.1 of 2002, dismissing the application filed under Order 16 Rule 1 C.P.C., seeking to issue summons to the proposed witness, by name Sri Ch.V. Satyanarayana to be examined as a Court witness. 4. C.R.P.No.1284 of 2009 is filed challenging the order, dated 18.11.2008, in I.A.No.435 of 2008 in O.S.No.1 of 2002, dismissing the application filed under Order 8 Rule 9 and Section 151 C.P.C., seeking to receive the additional written statement. 5. In both the civil revision petitions, the petitioner is defendant and the respondent is plaintiff in the suit O.S.No.1 of 2002. 6. For the sake of convenience, in this common order, the parties are referred to as per their array in the suit before the Court below. 7. The case of the plaintiff need not be elaborated inasmuch as the suit was instituted on the strength of a promissory note. The defendant had taken a plea by way of filing a written statement, which is denial of the plaint averments in toto, that the plaintiff never demanded the defendant to pay the amount of the suit promissory note, that the plaintiff filed the suit by playing fraud upon the defendant and also the Court with an intention to harass the defendant, since a decree was obtained by the defendant for specific performance of the agreement of sale against the wife of the plaintiff. Except denial of execution of the suit promissory note and attributing malafides, no other specific plea has been taken by the defendant in the written statement. 8. When the matter came up for trial after a long time, during the course of examination, it appears that in the chief affidavit as DW.1, the defendant had stated about Ex.B-4 letter said to have been executed by the proposed witness, who is no other than the son of the plaintiff, and produced the same before the Court below. It further appears that the plaintiff, while examining the defendant, made a suggestion that the said document Ex.B-4 was a forged one and the same was denied by the defendant. At that stage, the present application in I.A.No.398 of 2008 was filed by the defendant under Order 16 Rule 1 C.P.C., seeking to issue summons to the proposed witness to be examined as a Court witness. Obviously, the said application was filed in the light of Ex.B-4 document being pressed into service and a suggestion was also made by the plaintiff to the effect that the said document was a forged one, which was denied by the defendant. Having regard to the facts and circumstances, the Court below dismissed the said application by order, dated 11.9.2008, mainly on the following grounds: (a) In his written statement the petitioner/defendant did not refer this Ex.B4 understanding agreement. (b) During the cross examination of PW1 the petitioner/ defendant did not suggest any question by showing this Ex.B4 to PW1. (c) Only for the first time the defendant produced this Ex.B4 in his evidence without any pleading. (d) Ex.B4 understanding agreement is dated 01.02.1995 and the suit promissory note is dated 01.07.2000. 9. In view of the dismissal of the application in I.A.No.398 of 2008, another application in I.A.No.435 of 2008 was filed by the defendant under Order 8 Rule 9 and Section 151 C.P.C., seeking to receive the additional written statement, by which, obviously, the defendant wanted to introduce the theory of compromise entered into between himself and the son of the plaintiff, who were the business partners erstwhile and tried to establish that pursuant to the execution of the said Ex.B-4, letter of agreement, the present suit promissory note was executed as a collateral security. 10. However, the Court below dismissed the said application also by order, dated 18.11.2008. While dismissing the application, the Court below observed that the defendant cannot be allowed to take an inconsistent plea in the additional written statement that the suit promissory note was only a renewal of an earlier debt. It was further pointed out by the Court below that the defendant had already explained under what circumstances the suit promissory note came into existence in his written statement and now, at the stage of further evidence of the defendant, he had taken the additional pleas. It was also pointed out by the Court below that the defendant has not shown any reason why he did not brought this written statement facts also in the original written statement. It is to be noticed that only when the suit was coming up for trial and when the defendant was to be examined, the present petition came to be filed and for the reasons stated above, the said petition was also dismissed. 11. Therefore, aggrieved by the order, dated 11.9.2008, in I.A.No.398 of 2008, and the order, dated 18.11.2008, in I.A.No.435 of 2008, the defendant has filed C.R.P.Nos.5096 of 2008 and 1284 of 2009, respectively. 12. In support of his case, learned counsel for the defendant had placed reliance on a judgment rendered by the apex Court in OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI MULLA AKBERALLY[1]. In the said judgment, while considering the scope of Order 8 Rule 8 C.P.C. and taking a new plea by way of additional counter, the apex Court observed that it was open to the party to add a new ground of defence of substituting or altering the defence or even taking inconsistent pleas in the counter statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to other party and further that the Courts should be more generous in allowing the amendment of the counter statement of the defendant than in the case of plaintiff. 13. Learned counsel placed further reliance on the judgment rendered by the apex Court in USHA BALASHAHEB SWAMI v. KIRAN APPASO SWAMI[2] wherein it was observed that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings and further that the addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. It was also observed by the apex Court that even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement. 14. Reliance is also placed in the judgment rendered by the apex Court in BALDEV SINGH v. MANOHAR SINGH[3] wherein a similar view has been taken, which is to the effect that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. It was also observed that mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff. It was further reiterated that the amendment of the plaint and the written statement are not necessarily governed by the same principle, even though some general principles are certainly common to both. 15. Learned counsel also placed reliance on another judgment of the apex Court in DONDAPATI NARAYANA REDDY v. DUGGIREDDY VENKATANARAYANA REDDY[4] wherein it was observed as under: “Rules governing pleadings and leading of evidence have been incorporated to advance the interests of justice and to avoid multiplicity of litigation.” 16. The learned counsel also placed reliance on another judgment of the apex Court in YESHWANT SAKHALKAR v. HIRABAT KAMAT MHAMAI[5] wherein the supervisory jurisdiction under Article 227 of the Constitution of India was explained, which is as under: “Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” 17. What is deducible from the above decisions of the apex Court is that the Court has jurisdiction— firstly; either to reject or allow amendment of plaint or written statement, secondly; amendment of the plaint and the written statement cannot be treated on the same footing nor can be rejected by applying the same standards, thirdly; the Courts should be more liberal in allowing the defendants to take alternative or inconsistent pleas, fourthly; the delay cannot be a criteria, and fifthly; the conduct of the parties and the nature of the litigation also shall be looked into and a liberal approach can be adopted by the Courts so long as such amendment of written statement is not to the absolute prejudice of the plaintiff or, in cases, where there are no bonafides. 18. In the instant case, at a glance, it appears that all the ingredients for application of the above principles laid down by the apex Court in the judgments referred to supra are present. But, it is to be noticed that though the observations and the principles laid down by the apex Court are unexceptionable, still, having regard to the facts and circumstances of each case, the said settled principles have to be made applicable. 19. It is borne out from the record that a simple suit for recovery of money on the strength of a promissory note was filed and the same was denied in all respects. Only during the course of examination of the defence witnesses, the defendant pressed into service a document in Ex.B-4, which is in the nature of an agreement between the son of the plaintiff and the defendant, in order to demonstrate that the suit promissory note was executed as a collateral security pursuant to the said agreement only. Though divergent pleas are permitted to be taken by the defendant, in my considered view, it shall not be to the extent of absolute divergent, which may result in keeping the plaintiff, after completion of his part of evidence, in the cross roads. This virtually amounts to taking a new stand, which is altogether different to the stand that was already taken by the defendant in his original written statement. 20. It is to be seen that only after about six years when the trial had commenced, that too after completion of the evidence of the plaintiff, for the first time, during the course of examination, the defendant had introduced the document under Ex.B-4 and forced the plaintiff to make a suggestion about the veracity of the said document. In other words, the plaintiff, in a way, was agitated and compelled to make a suggestion to the defendant with regard to the veracity of Ex.B- 4. In fact, this leads to multiplicity or proliferation of litigation. Though the Courts are expected to be liberal in entertaining different and divergent defence, reasonable care is also expected to be taken by the defendant and the reins of the trial shall not be given to the hands of the defendant. In other words, the trial of the case and establishing the case of the plaintiff should not be guided only by such grave and inconsistent pleas, though otherwise permissible to be taken. 21. Further, though delay also shall not be the criteria, the delay, on the face of it, if found to be unjust, unreasonable and unexplained, the Court has jurisdiction to reject such an application seeking amendment of the defence. 22. To put in a different way, absolute liberty to the defendant and the liberal approach on the part of the Court while dealing with applications seeking amendment of the written statement shall not be dealt with an unlimited liberality and liberal approach, which may cause not only injustice to the plaintiff or the defendant, as the case may be, but also would result in waste of valuable time of the Court and the litigation would get not only magnified, but also multiplied. When the very object of such liberal approach is to avoid multiplicity of litigation and if, on facts, it is found by the Court below that it would only cause injustice to the other side and would result in multiplicity of litigation, the discretion exercised by the Court below in rejecting such application seeking amendment of the plaint or written statement need not necessarily be interfered with. 23. In other words, the litigant shall not be given to understand that they have every liberty to take inconsistent pleas at any time as per their will and pleasure. Prejudice to the other side, the valuable time of the Court, conduct and bonafides of the parties are also something, which deserve attention by the Court. 24. In the instant case, it is to be noticed that the defendant had initially filed application under Order 16 Rule 1 C.P.C., seeking to issue summons to the proposed witness i.e., son of the plaintiff, who was a party to the agreement, which was allegedly entered into in the year 1995, in order to demonstrate that the suit promissory note was executed as a collateral security. Here, what is to be noticed is the conduct of the defendant. 25. It is on record that D.W.1 during the course of examination-in- chief, introduced Ex.B-4, letter of agreement, entered by himself and the son of the plaintiff, and then forced the plaintiff to agitate with regard to the veracity of such document, which was never referred to in the original written statement and, taking cue from such a suggestion, the defendant obviously attempted to dilate the scope of the litigation, further obviously only to procrastinate the litigation. 26. What is further important to be noticed is, when the application in I.A.No.398 of 2008 under Order 16 Rule 1 C.P.C., seeking to issue summons to the proposed witness was rejected by the Court below, the defendant, instead of challenging the said rejection order by way of civil revision petition, subsequently filed another application in I.A.No.435 of 2008 under Order 8 Rule 9 and Section 151 of C.P.C., seeking to receive the additional written statement. This application is filed after six long years, more particularly only after dismissal of the earlier I.A.No.398 of 2008. 27. In my considered view, filing of the application I.A.No.435 of 2008 at a later date and subsequent to the dismissal of the application I.A.No.398 of 2008 is only to achieve what he could not achieve in his earlier I.A.No.398 of 2008. The conduct of the defendant is so conspicuous that somehow or the other, by hook or crook, he wanted to elongate the litigation by filing applications one after the other. 28. In fact, had the application in I.A.No.435 of 2008 under Order 8 Rule 9 and Section 151 of C.P.C., seeking to receive the additional written statement been filed initially and invited an order from the Court below, it would have been different. Perhaps, that would have been the right way of approaching the Court, since he can take inconsistent plea in the written statement and the approach of the Courts is expected to be liberal while entertaining such applications. 29. But, in the instant case, as already pointed out, the defendant initially failed to secure the presence of the third party by way of filing an application in I.A.No.398 of 2008 and, in order to bring life to the said application, another application in I.A.No.435 of 2008 was filed with equal success. The conduct of the defendant is palpably malafide and he is filing applications one after the other only to procrastinate the litigation,. 30. Therefore, as already opined, the defendant need not necessarily be given too long a rope than he deserves, depending upon the facts and circumstances of the case. ‘Liberty’ shall not be given to understand, either to the plaintiff or the defendant, as the case may be, as an absolute liberty or as a matter of right. It pre-supposes the discretionary jurisdiction of the Court and when such discretion has been duly, diligently and reasonably exercised by the Court below, this Court, in my considered view, shall restrain itself from exercising its jurisdiction under Article 227 of the Constitution of India. 31. At this juncture, it has been pointed out by the learned counsel for the defendant that the Court below also recorded certain findings on merits about Ex.B-4. Of course, the Court below may not be justified in recording such findings on the said document. I only make it clear that those observations/findings on Ex.B-4 shall not be conclusive and the same shall be subject to the trial of the suit. 32. A perusal of the impugned orders passed by the Court below, giving out its reasons in dismissing the applications, are justified and to the satisfaction of this Court. 33. Further more, as against the order of dismissal of the applications, the defendant has an effective alternative remedy available under Section 105 C.P.C. 34. It is also brought to the notice of this Court by the learned counsel for the plaintiff that the arguments of the plaintiff have been completed on 7.4.2009 itself and only when the matter is coming up for the arguments of the defendant, the present civil revision petitions are came to be filed. In view of the said fact, the civil revision petitions do not deserve any consideration and the same are liable to be dismissed. 35. For the foregoing, I do not find any illegality or irrationality in the impugned orders passed by the Court below warranting interference by this Court and the civil revision petitions are liable to be dismissed as devoid of merits. 36. In the result, both the civil revision petitions are dismissed, at the stage of admission. No order as to costs. ________________________ JUSTICE D.S.R.VARMA 30.07.2010. Note: L.R. copy be marked. (B/O) Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA CIVIL REVISION PETITION Nos.5096 of 2008 and 1284 of 2009 30.07.2010 (Msr) [1] 2010 (1) SCJ 919 [2] AIR 2007 SC 1663 [3] (2006) 6 SCC 498 [4] (2001) 8 SCC 115 [5] (2004) 6 SCC 71