CRP(MD)/2200/2023 of Sakila Banu Vs JOSEPH on 28 September 2026

ORDER

This Civil Revision Petition has been filed challenging the fair and decreetal order dated 20/06/2023 passed in I.A.No.5 of 2023 in O.S.No.38 of 2016 on the file of the IV Additional District Court, Tirunelveli.

2. The petitioners are the defendants in the suit filed by the respondent/plaintiff for recovery of money. The respondent/plaintiff claims to have purchased a property from the husband of the first petitioner on 03/08/2012. Subsequently, after about two years, he found that there was a discrepancy in the extent and measurement of the property purchased by him. Therefore, he approached the husband of the first petitioner and requested him to refund the sale consideration. It is stated that the husband of the first petitioner agreed to refund the amount and issued certain cheques. When the said cheques were presented for collection, they were returned. Hence, the suit has been filed for recovery of money. The petitioners sought to amend the written statement by incorporating certain additional pleadings.

3. It is the contention of the petitioners that the subject matter of the suit is a plot situated at Sumangali Nagar and the plaintiff had not initially mentioned the plot number or the measurements thereof. It is further stated that the plaintiff subsequently obtained a plan and therefore, the petitioners sought to incorporate the relevant particulars in the written statement. The petitioners also sought to plead that a third party had encroached upon a portion of the property sold to the plaintiff and that the said person had not been impleaded as a party to the suit. The respondent/plaintiff seriously disputed the necessity for the proposed amendment. The learned trial Judge dismissed the petition on the ground that the application had been filed belatedly. Aggrieved by the same, the petitioners have filed this Civil Revision Petition.

4. The learned counsel appearing for the petitioners relied upon the judgment of this Court in S.Kasilingam (died), K.Murugan and others Vs. M.Rajagopal and others, reported in 2025 (3) LW 381, wherein this Court, while considering an application under Order VIII Rule 9 of the Code of Civil Procedure, reiterated that mere delay cannot, by itself, be a ground for rejecting an application for receiving an additional written statement and that the Court has to consider the facts and circumstances of each case, particularly the necessity of the proposed pleading and the prejudice, if any, that would be caused to the opposite party.

5. He also relied upon the judgment of the Hon'ble Supreme Court in Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and others, reported in (2009) 15 SCC 528, wherein the Hon'ble Supreme Court held that mere delay is not sufficient to refuse an amendment of pleadings or the filing of an additional written statement. The Hon'ble Supreme Court further held that a defendant may, by way of an additional written statement, introduce a new ground of defence, substitute or alter a defence, or even take inconsistent pleas, provided that such pleading does not result in grave injustice or irretrievable prejudice to the plaintiff. It was also held that the Court should examine whether the proposed additional pleading is necessary for deciding the real controversy between the parties and that where prejudice is capable of being compensated by costs, the same should not ordinarily be rejected solely on the ground of delay.

6. The learned counsel appearing for the petitioners, therefore, submitted that in view of the above principles, the application ought not to have been rejected solely on the ground of delay and that the proposed amendment would enable the petitioners to effectively place their defence before the Court. Hence, he prayed for allowing the Civil Revision Petition, by setting aside the impugned order passed by the Trial court

7. Heard the learned counsel appearing for the petitioners and perused the materials available on record. There is no representation for the respondent, despite the name of the respondent being printed in the cause list.

8. On perusal of the records, it is seen that the suit has not been filed based on any dispute relating to the title or measurement of the property. The suit is essentially one for recovery of money.

9. It is true that one of the grounds stated by the plaintiff is that he had purchased the property from the husband of the first petitioner and subsequently, on verification, found that the extent and measurement of the property did not tally with the particulars represented to him. Consequently, he approached the husband of the first defendant and requested refund of the amount, pursuant to which certain cheques were issued. The said cheques, when presented for collection, were dishonoured, resulting in the filing of the suit for recovery of money. Therefore, the principal dispute in the suit is not with regard to the measurement of the property, but with regard to the liability arising out of the cheques issued towards repayment of the amount.

10. It is also relevant to note that the learned trial Court has specifically recorded that an Advocate Commissioner had already been appointed in I.A.No.4 of 2020. The Commissioner had inspected and measured the property and filed a report incorporating the measurements. Both parties had also filed their respective objections to the Commissioner's report. Therefore, the proposed additional pleadings with regard to the measurement and extent of the property are not necessary for adjudicating the real controversy involved in the suit.

11. It is further seen from the records that the petitioners, despite repeated opportunities, did not file their written statement within the time granted by the trial Court and were set ex-parte. Thereafter, they filed a petition to set aside the ex-parte order and subsequently filed their written statement. The suit was thereafter posted for trial and evidence was recorded. Documents were also marked.

12. The petitioners had earlier filed an amendment petition, which was also allowed. Even thereafter, on 26/08/2019, they had specifically made an endorsement that there was no further amendment to be carried out in their written statement. Further, even when the application for appointment of an Advocate Commissioner was taken up, the petitioners had not filed their counter and had sought several adjournments.

13. The present application has thereafter been filed at a highly belated stage. The learned trial Court has also recorded that the petitioners have been filing one petition after another and that the present application seeking to introduce additional pleadings has been filed nearly seven years after the institution of the suit.

14. This Court is conscious of the settled legal position that mere delay, by itself, cannot be a ground for rejecting an application for amendment or for receiving an additional written statement. In Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and others, reported in (2009)13 SCC 528, the Hon'ble Supreme Court specifically held that delay is not a sufficient ground to refuse an additional pleading where no prejudice is caused to the opposite party and further observed that even a new or inconsistent defence may be permitted so long as it does not result in grave injustice or irretrievable prejudice to the plaintiff. However, the said principle cannot be applied mechanically to every case of belated filing. The Court is required to consider the nature of the suit, the stage of the proceedings, the nature and necessity of the proposed pleading, the explanation for the delay and the prejudice that may be caused to the opposite party. The subsequent decision of this Court in S.Kasilingam (died) Vs. M.Rajagopal and others, reported in 2025(3) LW 381 also reiterates that the discretion under Order VIII Rule 9 CPC has to be exercised having regard to the facts and circumstances of each case.

15. In the present case, the petitioners seek to introduce pleadings relating to the measurement and extent of the property and an alleged encroachment by a third party. However, the suit is one for recovery of money arising out of the alleged transaction and the dishonour of the cheques issued towards repayment. Further, the issue relating to the measurement of the property has already been considered through the appointment of an Advocate Commissioner, who has inspected the property and filed his report, to which both parties have already submitted their objections. Therefore, the proposed pleadings do not appear to be necessary for determining the real controversy between the parties. On the contrary, permitting the petitioners to introduce such pleadings at this advanced stage, after the suit has substantially progressed and evidence has been recorded, would have the effect of reopening the scope of the proceedings and causing prejudice to the respondent.

16. It is also to be noted that the petitioners have also not offered any satisfactory explanation as to why the proposed pleadings were not incorporated in the written statement at the earliest opportunity, particularly when they had already obtained an opportunity to amend their

written statement and had, on 26/08/2019, specifically endorsed that no further amendment was required. Thus, the present case is distinguishable on facts from the circumstances considered by the Hon'ble Supreme Court in Olympic Industries's case. In that case, the delay had been satisfactorily explained and the proposed additional defence was found to be relevant for deciding the real controversy, whereas, in the present case, there is no satisfactory explanation for the extraordinary delay and the proposed pleadings are not necessary for adjudicating the dispute involved in the suit.

17. Therefore, though delay alone cannot be a ground for rejecting an application seeking amendment of pleadings or receiving an additional written statement, in the facts and circumstances of the present case, the proposed amendment is neither necessary for determining the real controversy between the parties, nor supported by any satisfactory explanation for the delay. The learned trial Court has considered the relevant circumstances and has rightly dismissed the application. In such circumstances, this Court is of the view that the order passed by the learned trial Court does not warrant interference.

18. In the result, this civil revision petition is dismissed, confirming the order dated 20.06.2023 passed by the learned IV Additional District Court, Tirunelveli, in I.A.No.5 of 2023 in O.S.No.38 of 2016. No costs. Consequently, connected Miscellaneous Petition is closed. 28.09.2026 Index:Yes/No Internet:Yes/No er To

1. The 4th Additional District Court, Tirunelveli.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er

CRP(MD)No.2200 of 2023 28/09/2026