SEKAR Vs. A N SENGODAGOUNDER

JUDGEMENT

(1.) This civil revision petition is filed against the fair and decretal order dated 9.7.2009 made in l.A. No. 1085 of 2008 in O.S. No. 198 of 2000 on the file of District Munsif, Sankari.

(2.) The petitioners are the defendants and the respondent is the plaintiff in the suit. The respondent/plaintiff and his brothers jointly purchased large extent of properties. On 27.4.1960, by virtue of a registered partition deed they partitioned the entire properties owned by them jointly. Atthe time of enjoying entire properties, they formed number of cart tracks for better and convenient enjoyment of their entire properties. The suit property is one such cart track and the width of all the cart tracks detailed in the partition deed is 30 links. The respondent/plaintiff all along enjoying the cart track detailed in the plaint. The petitioners/defendants 1 and 2 are the grand sons of one of the brother viz., Muniappa Gounder, of the plaintiff and the third defendant is the daughter in law of the Muniappa Gounder. The petitioners/defendants are also entitled to use the cart tracks. There was misunderstanding between the respondent/plaintiff and the petitioners/defendants. It was alleged that the petitioners/defendants with ulterior motive in order to give inconvenience and cause injury to the respondent/plaintiff, attempted to put up stone revetment encroaching a part of the suit cart track. In such circumstances, the respondent/plaintiff filed a suit in O.S. No. 198 of 2000 of 2004 praying for permanent injunction restraining the defendants, their men, servants and agents from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit cart track to take his men, cart cattle and lorry through the same as a right of ingress and egress to reach his houses and other properties and in particular from encroaching any part of the suit property and put up stone revetment in the same and for costs. The petitioners/defendants filed a written statement on 25.7.2001 denying all the allegations and stated that the respondent/plaintiff is trying to encroach the major portion of cart track and trying to construct stone revetment on the edge of the cart track as detailed in the partition deed dated 27.4.1960. Subsequently, the petitioners/defendants filed a petition under Order 8 Rule 9 C.P.C. to grant leave to file additional written statement on the ground that the suit cart track runs through survey Nos. 284/11 and 285/1J and its other sub-divisions and no cart track was running in the southern part of survey No. 284/6. But in the description of property it is mentioned that the suit cart track is running in Southern part of S. No. 284/6. As per recitals in the partition deed dated 27.4.1960, no cart track runs in S. No. 284/6.Therefore the suit itself is not maintainable. The petitioners/defendants further contended that the above stated facts are accidentally omitted to state in the written statement filed earlier and also no such averment made in the body of the plaint as if cart track runs in S. No. 284/6. After considering the fact's and circumstances, the trial Court has dismissed the said I.A., on the ground that it was filed very belatedly and also it would cause prejudice to the respondent/plaintiff as the petitioners/defendants has not raised the present defence in the earlier written statement and also after filing proof affidavit and the examination of PW1 the petitioners/defendants filed the said LA. Aggrieved by that order, the petitioner has filed the present civil revision petition.

(3.) The learned counsel appearing for the petitioners/defendants submitted that the trial Court erred in dismissing the LA filed by the petitioners/defendants seeking to grant leave to file additional written statement. He further submitted that the trial Court is wrong in holding that the petitioners/defendants are introducing a new case by way of additional written statement and also failed to appreciate that the petitioners/defendants had elucidated the recitals in the partition deed dated 27.4.1960 which does not amount to introduce a new case. He further submitted that the trial Court ought to have looked into the nature of plea raised in the additional written statement and also the plea raised in the additional written statement is vital to decide the case and also the Court has discretionary power to admit the additional written statement and also relied on the decisions of the Apex Court in the case of Sushil Kumar Jain v. Manoj Kumar and Another AIR 2009 SC 2544; Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally and Others (2009) 7 MLJ 1081 (SC) and P.A. Jayalakshmi v. H. Saradha and Others (2009) 6 MLJ 1138 : 2009 (4) CTC 201 and seeks to set aside the order passed by the trial Court.