SIMON Vs. THANKAMMAL

JUDGEMENT

(1.) THE civil revision petition has been filed against the order allowing the application for amendment of the written statement by the learned District Munsif, Eraniel in I.A. No. 133 of 1997 in O.S. No. 2 of 1997 on his file. THE amendment sought for is for adding the pleading that the compromise effected in A.S. No. 137 of 1973 is fraudulent and collusive. THE main objection raised by the revision petitioner before the lower court was that in the same proceedings, at an earlier point of time, the respondents had asked for permission to file an additional written statement to the same effect and it was rejected.

(2.) THE learned District Munsif has taken pains to point out the distinction between the additional written statement and the amendment of written statement. While prior leave of the court is necessary for filing an additional written statement, no such leave is necessary for filing an amendment petition and held that the amendment has to be allowed as no injustice is caused to the other side. Consequently, the learned District Munsif allowed the amendment of the written statement on payment of costs of Rs. 250 to the revision petitioners.

(3.) AFTER the dismissal of the civil revision petition on 8.9.1983 the respondents filed I.A. No. 405 of 1983 for amendment of the written statement by adding a sentence that ?the compromise in A.S. No. 137 of 1973 and the decree passed thereon are vitiated by fraud and collusion between the defendants 1 and 2 in O.S. No. 811 of 1969 and so they are invalid and not binding on this defendant.? In September 1983 a counter was filed opposing the amendment. On 24.10.1994 A.S. No. 60 of 1982 was allowed and the matter was remanded. The appellate judge while remanding the matter observed that only if the trial court came to the conclusion that the compromise was bona fide , only then Section 52 of the Transfer of Property Act relating to lis pendens would apply as the said section talked about the decree being not collusive. I.A. No. 405 of 1983 was also sent back to the trial court. Against the remand order C.M.A. No. 347 of 1984 was filed to this Court and Raju, J. as the learned Judge then was allowed the C.M.A.on 8.3.1991 holding that no opportunity could be given to the parties to fill up lacunae in the evidence and directed the lower court to restore the appeal to its file and deal with the appeal on merits giving opportunity to both the parties in accordance with law and decide the appeal as was expected of it and dispose of the same on merits and if the appellate court interim of Order 41 Rule 23 of the C.P.C. and procedure laid down in the series of decisions came to the conclusion that the matter deserved to be remanded, there will not be any embargo for the lower Appellate court to do that for proper and requisite reasons. AFTER the disposal of the C.M.A. by this court A.S. No. 60 of 1982 was taken up by the appellate judge and on 24.10.1994 the appeal was allowed and the matter was remanded to the trial court setting aside the judgment and the decree of the trial court. The trial court was directed to take in to consideration the additional application and the additional written statement as also the additional issues and after affording adequate opportunity to the parties to let in evidence dispose of the suit within a period of three months therefrom. Thereafter the suit O.S. No. 784 of 1979 was transferred to the District Munsif Court, Padmanabhapuram to the newly set up District Munsif Court, Eraniel renumbered as O.S. No. 2 of 1997 and I.A. No. 405 of 1983 in A.S. No. 60 of 1982 renumbered as I.A. No. 133 of 1997. This I.A. as noticed in the beginning of this order was allowed by the lower court on 26.2.1998 in the interest of justice. The serious obstacle in confirming the order of the lower court is the order in C.R.P. No. 985 of 1983. It is not disputed nor can it be disputed that the purpose of the earlier petition which culminated in dismissal by the appellate court and confirmed in revision by this Court on the one hand and the object for which I.A. No. 133 of 1997 (previously I.A. No. 405 of 1983) has been filed on the other are one and the same. What cannot be done directly cannot be done indirectly.