KALLAMPUDI NARAYANAPPA Vs. KALIGOTLA SURYANARAYANA

JUDGEMENT

(1.) THE petitioner in this revision petition is defendant 1 in O. S. No. 85 of 1948 on the file of the District Munsif's Court, Yellamanchilli, instituted for redemption of two usufructuary mortgages executed by defendant 2 in favour of defendant 1. THE plaintiff claimed to be the purchaser of the properties subject to two mortgages having purchased the same from defendant 2. Defendant 2, mortgagor filed a written statement in person on 7th July 1948. Defendant 1's contention is that in pursuance of an agreement of sale executed by defendant 2 in his favour agreeing to sell the property he came into possession of the property and that by virtue of Section 53A, T. P. Act his title to the pro. perty had been perfected and that the plaintiff is not entitled to redeem the properties. Defendant 2 in his statement filed on 7th July 1948 which was filed in person had stated that he had executed on 25th December 1945 an agreement to sell on a stamped paper and had taken Rs. 212 cash from defendant 1 to make up the purchase amount. Though the properties were previously in the possession of defendant 1, defendant 2 had delivered possession again as per the agreement to sell and also made an arrangement Page 1 of 2 Kallampudi Narayanappa vs. Kaligotla Suryanarayana and Ors. (27.07.1949 - MADHC) 6/19/2007 to take the agreement to sell as a sale-deed till he executed a registered saledeed on a properly stamped paper. He also pleaded that even though defendant 2 informed the plaintiff about the agreement to sell in favour of defendant 1 the plaintiff had encouraged him by saying that he would give the surplus money and persuaded him to execute the sale-deed in favour of the plaintiff. On 3rd January 1949 defendant 2 filed I. A. No. 7 of 1949 praying to permit him to substitute another written statement which was then prepared under legal advice in the place of the one already filed on 7th July 1948 and in support of this application he filed an affidavit to the effect that the first written statement was obtained by defendant 1 under fraud and misrepresentation and that, therefore, he should be given leave to substitute the new statement filed along with the interlocutory application in the place of the one filed already. THE learned District Munsif directed that the written statement filed along with the interlocutory application should be substituted in the place of the written statement filed by him in person on 7th July 1948. THE interlocutory application was sought to be filed under Order 8, Rule 1 and Section 151, Civil P. C. Order 8, Rule 1 relates to the filing of written statements. THE written statement that had already been filed was one under Order 8, Rule 1, Civil P. C. It cannot be said that Order 8, Rule 1 would apply for the substitution of a fresh written statement in the place of the one filed already under Order 8, Rule 1, Civil P. C. It is unnecessary to consider whether the written statement could have been filed under Order 6, Rule 17, Civil P. C., as it relates to the amendment of pleadings by which the pleadings may be altered or amended under the circumstances mentioned |in the rule. THEre is, however, no provision in the Civil Procedure Code to enable the Court to permit the substitution in toto of one written statement for another already filed. I am of opinion that the learned District Munsif had no jurisdiction to pass an order directing the substitution of the new written statement filed along with the interlocutory application in the place of the one filed already under Order. 8, Rule 1, Civil P. C. THE original statement filed in the first instance on 7th July 1948 will remain on the file. It is always open to defendant 2 at the time of the trial of the suit to state the circumstances which he now alleges, under which the first written statement which he filed in person was presented. THE revision petition is allowed with costs.