IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 6 5 2 OF 2009. Between: Mohammed Imamuddin s/o late Md. Hameeduddin, aged about 39 years, 0ccupation: business, R/o. H.No. 18-7-402/1, Talab Katta, Mirjumla, Hyderabad. … Revision Petitioner V/s. Mohammed Waliuddin, s/o late Md. Hameeduddin, age about 52 years, 0ccupation: business, R/o. H.No. 18-8-244/A/20, Moin Baugh, Edi Bazaar, Hyderabad, & 7 Ors. … Respondents Counsel for the Revision Petitioner: Sri Md.Ghulam Hussain Counsel for the Respondents : Sri Md.Nasrullah Khan THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION NO: 5 6 5 2 OF 2009 O R D E R : Aggrieved of the order dated 18-11-2009 passed in I.A.No. 270 of 2009 in O.S.No. 1333 of 2002 by the Additional Judge, City Small Causes Court-cum-VI Senior Civil Judge, City Civil Court, Hyderabad, allowing the application filed under Order VIII, Rule-9 read with section 151 of the Code of Civil Procedure granting leave to the petitioner-defendant No.2 to file additional written statement, this Civil Revision Petition is filed by the respondente-plaintiff. 2. The averments made in the affidavit filed in support of the petition are briefly as follows: It is stated that the respondent-plaintiff filed O.S.No.1333 of 2002 with his dishonest intentions of grabbing half portion of the property taking advantage of presence of his name in the sale deed Ex.B3 though the said half portion was already conveyed by him in his favour by way of oral gift dated 25-7-1996, confirmed by written acknowledgement dated 04-9-1996 and on his application the trial court framed additional issues regarding the bar/estoppel for him to file the above suit, claiming half portion of the property evenafter making the gift in his favour. It is further stated that in the written statement, the plea regarding the above facts is not pleaded specifically though he already filed the original memorandum of acknowledgement of oral gift (25-7-1996) dated 04-08-1996, which was marked as Ex.B5. Further, the defendant No.3, who was examined as DW.6 and the attestor of Ex.B5, who was examined as DW7, specifically deposed the fact of the above referred oral gift and subsequent written memorandum and they are the eye witnesses of the same and thereby the fact of conveying the property by the respondent-plaintiff in his favour through the above said oral gift and written memorandum is proved but the respondent-plaintiff is trying to take undue advantage on the technicalities of non- mentioning of the above facts in his written statement specifically. In view of the above mentioned facts and circumstances, the petitioner-defendant No.2 sought to permit him to file additional written statement in the above suit since his valuable rights are involved. 3. On the other hand, the respondent No.1/plaintiff filed counter-affidavit with the following averments in brief: It is averred that the contentions of the petition and affidavit are not specifically admitted, as they are inconsistent to this counter-affidavit are denied. It is averred that the petitioner- defendant No.2 is willing to file additional written statement, while there is no mention in the petition what plea he wants to take, therefore, the petition is liable to be dismissed. It is further averred that the petitioner-defendant No.2 in his affidavit willing to take the plea of memorandum of oral gift in his favour but the gift can be made by the owner of the property while the respondent No.1 in his written statement filed earlier has taken the plea that the name of this respondent is mention in sale deed, as the name sake only and thus denied the title of this respondent over the suit property and it is further averred that the petitioner has taken the plea in earlier written statement of benami transaction claiming that he has paid the full sale consideration, therefore, the plea of gift intended to be taken is contrary to the earlier contention. It is averred that earlier I.A.No. 350 of 2008 was filed seeking amendment of written statement to incorporate the allegation as to the alleged oral gift and memorandum of gift and the same was dismissed by an order dated 15-6-2009 and now the present petition has been filed with an intention to defeat the order of the trial court refusing to permit him to take the said plea. The order dated 15-6-2009 rejecting amendment in written statement operates as resjudicata. It is further averred that this respondent had claimed the title over the suit property to the extent of half share relying on Ex.B3 sale deed dated 12-2-1990 in E.A.No. 40 of 2001 in EP.No. 31 of 2001 filed by this respondent against the decree holder and judgment debtor, the said claim petition was allowed. It is averred that the petitioner one of the respondent in the said claim petition has not opposed the claim petition. Therefore, the doctrine of estoppel operates against him. Hence, the petitioner-respondent No.2 is trying to delay the disposal of main suit and therefore, petition is liable to be dismissed. 4. On the basis of the above rival contentions, the trial court relying on a decision in Soundarasanne V/s. Pouchepavady and Others, reported in AIR 2002 NOC 205 (Madras), wherein it was held that additional written statement can be allowed even counter-claim or set-off not pleaded and if there is no prejudice to other side, interlocutory application was allowed by permitting the petitioner-defendant No.2 to file additional written statement. 5. Aggrieved thereby, the present Civil Revision Petition is filed by the respondent-plaintiff. 6. The facts of the case are that the Respondent No.1 and petitioner herein had purchased house bearing No. 18-7-402/1 in an extent of 270.03 sq.yards consisting of cellar, groundfloor and first floor, situate at Mir Jumla Talab Katta, Hyderabad, under registered sale deed dated 12-2-1990 vide Document No. 736/1990 and reconstructed it. The respondent No.1 orally gifted his half undivided share in the suit house to deceased respondent No.2 herein. The petitioner has filed OS.No.1333 of 2002 seeking partition and the same is pending on the file of the Court of Additional Judge, City Small Causes Court-cum-VI Senior Civil Judge, City Civil Court, Hyderabad and the said suit is at the stage of arguments and in fact the petitioner has already submitted written arguments. The respondent No.1 filed I.A.No. 350 of 2008 under Order-VI, Rule-17 of CPC seeking amendment of his written statement on the ground that the petitioner voluntarily made an oral gift on 25-7-1996 in favour of respondent No.1 in respect of half of the suit house and the petitioner executed memorandum of oral gift on 04-8-1996 and it was dismissed on merits on 15-6-2009. Thereafter, respondent No.1 filed another I.A.No. 270 of 2009 under Order-VIII, Rule 9 of the Code of Civil Procedure seeking leave to file additional written statement in favour of respondent No.1 by way of oral gift on 25- 7-1996 and that the petitioner confirmed it by written acknowledgement dated 04-8-1996 and the trial court allowed the said petition on erroneous view of facts and law. 7. Sri Mohammed Ghulam Hussain, the learned counsel appearing for the revision petitioner vehemently contended that the petitioner filed the above suit on 28-6-2002 and the respondent No.1 being defendant No.2 has filed written statement on 23-6-2003 in which respondent No.1 did not pleaded anything about the alleged oral gift and the alleged memorandum of gift. The parties have already adduced evidence and the suit is at the stage of arguments and in fact the petitioner has already submitted his written statement. As such, at this belated stage the respondent No.1 is not entitled to seek leave to file additional written statement. The trial court erred in allowing the petition filed by respondent No.1. He further contended that the trial court ought to have seen that the respondent No.1 earlier filed I.A.No. 350 of 2008 seeking amendment of written statement to incorporate the allegation as to alleged oral gift and memorandum of gift and the same was dismissed on 15-6-2009. The respondent No.1 thereafter filed the present I.A. seeking to file additional written statement, which virtually amounts to claim for amendment of written statement by circumventing the order of dismissal of I.A.No. 350 of 2008 by an order dated 15-6-2009. Further he contended that the respondent No.1 is not entitled to substitute to file fresh written statement under the guise of alleged additional written statement with altogether different and inconsistent allegation, therefore, the trial court failed to consider the matter in a right and proper prospective and came to a wrong conclusion. 8. On the other hand, Sri Mohammed Nasrullah Khan, the learned counsel for the respondent-defendant No.2 contended that no prejudice will be caused to the revision petitioner if leave is granted to respondent No.1 to file additional written statement, as the trial court rightly relied the decision in Soundarasanne V/s. Pouchepavady and Others, reported in AIR 2002 NOC 205 (Madras), wherein it was held that additional written statement can be allowed even counter-claim or set-off not pleaded and if there is no prejudice to other side. 9. Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondent-defendant No.2 and perused the impugned order passed by the trial court. 10. On perusal of the impugned order as well as the record it appears that on earlier occasion, the respondent No.1- defendnat No.2 filed I.A.No. 350 of 2008 seeking amendment of written statement to incorporate the allegation as to alleged oral gift and memorandum of gift but the same was dismissed by the trial court through order dated 15-6-2009. Further the trial court did not looked into the dismissal of I.A.No. 350 of 2008 but it went wrong on the premise that no prejudice will be caused if leave is granted to respondent No.1 to file additional written statement which will result in reopening of the entire case afresh. A perusal of the order impugned goes to show that the trial court has not assigned any reason with regard to the contentions raised by the revision petitioner and it simply relied on the decision referred supra and granted leave to the respondent No.1-defendnat No.2 and permitted him to file additional written statement, which is prejudicial to the interest of the revision petitioner. 11. Under the above circumstances, the order dated 18-11-2009 passed in I.A.No.270 of 2009 in O.S.No.1333 of 2002 by the Additional Judge, City Small Causes Court-cum-Vi-Senior Civil Judge, City Civil Court, Hyderabad, is set aside and the matter is remanded to the court below to pass appropriate order on merits and in accordance with law after affording reasonable opportunity to both sides. Meanwhile the court below shall not accept any additional written statement, if it is already filed, till the disposal of I.A.No.270 of 2009 in O.S.No. 1333 of 2002 pending on its file. Further the trial court is directed to dispose of I.A.No. 270 of 2009 in O.S.No.1333 of 2002 within a period of four weeks from the date of receipt of a copy of this order. 12. With the above direction, the Civil Revision Petition is allowed and remanded back to the Court of Additional Judge, City Small Causes Court-cum-Vi-Senior Civil Judge, City Civil Court, Hyderabad, for disposal of I.A.No. 270 of 2009 in OS.No.1333 of 2002 afresh and pass appropriate order on merits and in accordance with law, preferably within a period of four weeks from the date of receipt of a copy of this order. However, in the circumstances, there shall be no order as to costs. ______________________ JUSTICE T. MEENA KUMARI 04-12-2008. I s L. THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 6 5 2 OF 2009 Circulation Entry No. 22 Date: 06-11-2009 Court Master : I s L Computer No. 43.