(Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the order in I.A.No.205 of 2022 in O.S.No.289 of 2016, dated 20.07.2022 on the file of the learned Principal Subordinate Judge, Thanjavur.)

1. The present Civil Revision Petition has been filed challenging the order passed by the learned Principal Subordinate Judge, Thanjavur, in I.A.No.205 of 2022 in O.S.No.289 of 2016, dated 20.07.2022.

2. Heard Mr.S.A.Ajmal Khan, learned Counsel for the petitioners and Mr.M.R.Sreenivasan, learned Counsel for the respondent.

3. The respondent is the plaintiff and the deceased sole petitioner is the defendant in the suit in O.S.No.289 of 2016 on the file of the Principal Subordinate Court, Thanjavur. The respondent/plaintiff has filed the suit in O.S.No.289 of 2016 seeking specific performance of the contract of sale, dated 24.06.2015 and to direct the defendant to execute a sale deed in favour of the plaintiff with respect to the suit properties by receiving the balance sale consideration of Rs.2,40,000/- and for other consequential reliefs.

4. In the plaint, the plaintiff has averred that the defendant is the absolute owner of the suit schedule property and the defendant has agreed to sell the suit property for a sale consideration of Rs.5,00,000/- in favour of the plaintiff. In this regard, the plaintiff and the defendant had entered into a registered sale agreement on 24.06.2015 and the plaintiff/respondent has paid a sum of Rs.2,60,000/- as advance to the defendant on the date of the sale agreement and the period for conclusion of the contract was fixed as one year from 24.06.2015. Thereafter, the respondent/plaintiff has insisted the defendant to receive the balance sale consideration and to execute the sale deed. A legal notice was issued by the respondent/plaintiff on 21.05.2016 calling upon the petitioner/defendant to execute a sale deed in favour of the respondent/plaintiff. It is the further case of the plaintiff that on 22.05.2016, the petitioner/defendant had met the respondent/plaintiff and requested one month time to execute a sale deed in favour of the respondent/plaintiff. Since the respondent/plaintiff awaited for a positive sign from the petitioner/defendant and no reply was received from the petitioner/defendant, he had filed the present suit.

5. During the pendency of the suit, the plaintiff/respondent herein filed an application in I.A.No.205 of 2022 in O.S.No.289 of 2016 under Order VIII Rule 9 of CPC for receiving reply statement filed along with the said application stating that the defendant has filed the written statement with false averments and in order to deny the contents in the written statement filed by the defendant, the present application to receive the reply statement has been filed.

6. The learned Principal Subordinate Judge, Thanjavur, by relying on the judgment of this Court reported in AIR 2014 Madras 50 in the case of P.Saraswathy vs C.Subramanian, vide order, dated 20.07.2022, had allowed the said application. The relevant portion of the said order is extracted hereunder:

                   "5......... Hence, as per the above dictum even after the commencement of trial the petitioner/plaintiff can be permitted to file reply statement and as per the facts of this case the new averment was put forth in the written statement that the contract of sale is executed for the security of the loan availed by the respondent/defendant. Hence, the new averment should be explained and denied by the plaintiff. As per the evidence, if there is no pleadings no evidence can be adduced and without any pleadings could be considered by the Court. Hence, in the interest of justice the application should be allowed and the contention of the respondent/defendant that already PW.1 examined and cross examined. Hence this application is not maintainable and not accepted by this court as per the dictum mentioned above. From the above discussion this court comes to the conclusion that the petition can be allowed.

                   6)In the result, the petition is allowed. No costs.

7. Challenging the same, the defendant in the suit has filed the present Civil Revision Petition.

8. During the pendency of the Civil Revision Petition, the sole petitioner/defendant died and his legal heirs were impleaded as petitioners 2 to 6.

9. The learned Counsel for the Revision Petitioners submitted that after the completion of chief and cross examination of PW-1 to PW-3, the plaintiff has filed the application under Order VIII Rule 9 CPC for receiving reply statement filed along with the said application. The learned Counsel for the Revision Petitioners further submitted that when an application is filed for receiving reply statement, the provisions of Order VIII Rule 9 CPC has to be considered only when necessary averments are pleaded in the plaint and cannot fill up the lacunae by filing reply statement and to establish the right, the plaintiff ought to have shown necessary averments in the pleadings and documents has to be placed.

10. The learned Counsel for the Revision Petitioners pointed out that the cross examination of PW-1 was taken place on 16.02.2022, 11.04.202 and 28.09.2022. PW-1, during the cross examination conducted on 11.04.2022, deposed as follows:

                   

                   

11. The learned Counsel for the Revision Petitioners further submitted that during cross examination, the plaintiff has admitted the entire facts and now by filing an application under Order VIII Rule 9 CPC, the plaintiff has try to fill up the lacunae in the plaint and without considering the above facts, the learned trial Judge had allowed the application filed by the plaintiff, which is per se illegal and seeks interference of this Court.

12. The learned Counsel for the Revision Petitioners relied on the judgment of this Court in the case of A.Manohar Prasad and others vs M/s.Prasad Production Private Limited, reported in 2019-1-LW-54, wherein, this Court has held as follows:

                   "14.For the aforesaid reasons and findings, it can only be held that an application filed under Order 8 Rule 9 of the Civil Procedure Code, without adducing any reason for justifying the delay in raising pleas through an additional written statement or filing an application at a belated stage, does not deserve any consideration for exercise of the discretion of the trial Court in granting leave."

13. The learned Counsel for the Revision Petitioners further relied on the judgment of this Court in the case of Gangadurai vs EN.Palanichamy, reported in 2019 (3) TNCJ 576 (Mad)(MB), wherein, this Court has held as follows:

                   "17. From the aforesaid comparison of the original written statement and additional written statement, it is clear that the Respondent / first Defendant is attempting to project the picture that all the original trustees, except the Revision Petitioner / Plaintiff and the Respondent / first Defendant, resigned in August 1994 and that their resignation was accepted by the Board of Trustees on 17.08.1994. As regards the Revision Petitioner/Plaintiff, the case of the Respondent/ first Defendant is that he submitted a resignation letter on 08.08.1998 through Mr.Sivasankaramoorthy. As per the original written statement, the said Sivasankaramoorthy was a Trustee at the relevant point of time, i.e. in 1998, whereas, as per the additional written statement, the said Sivasankaramoorthy also resigned on August 1994. In effect, as per the additional written statement, other than the Respondent/first Defendant, none of the original Trustees continued as Trustees on the date of alleged resignation of the Revision Petitioner/Plaintiff. Thus, it is clear that the pleadings in the original written statement and the additional written statement are inconsistent with regard to material facts. The inclusion of additional facts in the additional written statement, which are inconsistent with the original written statement, would certainly prejudice the Revision Petitioner / Plaintiff, especially when the said additional written statement is permitted to be filed after the cross-examination of PW-1 & PW-2.

                   18. Even with regard to the manner of communication of the alleged resignation letter of the Revision Petitioner / Plaintiff, new facts with regard to the alleged confirmation of the receipt of the resignation by the Respondent / first Defendant have been added in the additional written statement, which would impact the evidence relating to and proof of the alleged resignation. Therefore, it appears that the new pleas in the additional written statement have been designed to overcome perceived weaknesses in the defence of the Respondent / first Defendant during the course of trial.

                   19. Consequently, I am of the view that the conclusion of the trial Court that the additional written statement does not contain anything contrary to or inconsistent with the original written statement is patently erroneous. In fact, as already stated, the inconsistency is with regard to facts that are vital for the purposes of the disposal of the suit Consequently, the order of the trial Court is liable to be set aside. In the result, this Civil Revision Petition is allowed by setting aside the order of the trial Court in I.A.No.260 of 2013. No costs. Consequently, connected M.P.(MD) No.1 of 2014 is closed."

14. Per contra, the learned Counsel for the respondent/plaintiff submitted that the petitioner/defendant had borrowed a sum of Rs.1,00,000/- towards simple mortgage along with his two sons, Sathish Kumar and Illaya Raj on 09.02.2009 and the defendant was paid a sum of Rs.3,000/- per month at 12% interest per annum and executed a simple mortgage deed on 09.02.2009. Thereafter, the defendant failed to repay the principal amount and to redeem/discharge the mortgage, instead, he offered to sell the suit property to the plaintiff. The sale price was fixed as Rs.5,00,000/-. The amount due by the defendant against the plaintiff as on 24.06.2015 was Rs.1,76,500/- and on 24.06.2015, the plaintiff has paid a sum of Rs.83,500/- in favour of the defendant and in total, a sum of Rs.2,60,000/- was shown as advance in the sale agreement, dated 24.06.2015, which was registered as Doc.No.812 of 2015. The learned Counsel for the respondent further contended that the mortgage deed entered into between the plaintiff and the defendant was discharged vide Doc.No.811 of 2015 on 24.06.2015. Thus, the defence taken by the defendant that the sale agreement was executed only as a security is a false one. Hence, he seeks dismissal of this Civil Revision Petition.

15. The learned Counsel for the respondent relied on the judgment of this Court reported in 2011 Supreme (Mad) 509, in the case of M/s.Marathon Electric Private Limited vs Devie and Company, wherein, this Court has held as follows:

                   "10.In the case on hand, this Court is of the considered view that the plaintiff is not introducing any new plea so as to prejudice the rights of the defendants. As adverted to supra, the dispute as to the genuineness of the document is always open to be agitated. Since no inconsistent pleadings nor new cause of action are forthcoming, the reply statement could be entertained.

                   11.In view of the above findings, the objections in the counter are overruled and the petition to receive the reply statement has to be allowed.

                   12.In the result, the application is allowed permitting the plaintiff to file reply statement. No costs."

16. The learned Counsel for the respondent further relied on the judgment of this Court reported in 2005 Supreme (Mad) 481, in the case of Fransisco Pandian vs Joseph and another, wherein, this Court has held as follows:

                   "13.Pointing out that opportunity is to be given to the party to file the subsequent pleadings and referring of decisions in Mrs.Vera Marie Vas and another vs Mrs.Joyce Primrose Preston Nee Vas and others (2002 (3) MLJ 510), C.NAGAPPAN, J. has observed that the Plaintiff has got right of reply to the Written Statement, if in the Written Statement, the Defendant sets out a counter claim puts forth a new case. It is further observed that by taking permission of the Court the Plaintiff could file the Additional Reply Statement and the learned Single Judge has agreed with the view expressed by the Karnataka High Court reported in I.L.R. 1980 (1) Karnataka 247. In the said decision, by receiving the Reply Statement the Trial Court has exercised the discretion properly and the Revision Petition filed by the Petitioner / Defendant was dismissed. The views expressed by the learned Single Judge squarely applies to the case in hand, where the Plaintiff has sought permission of the Court to file Additional Statement. The learned District Munsif was not right in declining permission to file the Reply Statement.

                   14. There is no proper exercise of judicial discretion. Learned District Munsif not only denied the opportunity to the Plaintiff, but there is also no proper exercise of judicial discretion. In that view of the matter, the order of the District Munsif, Srivaikuntam is to be set aside and this Civil Revision Petition is to be allowed.

                   15. In the result, the order of the District Munsif, Srivaikuntam dated 03.12.2002 in I.A. No.775 of 2002 in O.S.No.136 of 2001 is set aside and this Civil Revision Petition is allowed. The Trial Court is directed to receive the Reply Statement filed by the Revision Petitioner / Plaintiff. In the circumstances of the case, there is no order as to costs. The connected C.M.P.No.1321 of 2003 is closed."

17. The point for consideration in this case is whether an application filed under Order VIII Rule 9 CPC can be entertained in the absence of any pleadings, which was available with the plaintiff on the date of filing of the plaint.

18. Order VIII Rule 9 CPC which is extracted hereunder:

                   “Subsequent pleadings :- No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms, as the Court thinks fit; but the Court may at any of the parties and fix a time of not more than thirty day for present the same.”

19. It is to be noted that the trial Court has not considered neither the case of the respondent/plaintiff nor the case of the petitioner/defendant and without analyzing the pleadings and the evinced adduced on either side, the trial Court has allowed the application filed by the respondent/plaintiff. As stated supra, the respondent/plaintiff has filed the application after the cross examination of PW-1 that has taken place on 11.04.2022, where, the plaintiff has denied that he was not aware with regard to the loan amount advanced by the respondent in favour of the petitioner/plaintiff and the cancellation of the document by discharging the loan amount.

20. It is relevant to note that the agreement for sale was a registered as Doc.No.812 of 2015 and the discharge of the simple mortgage, dated 09.02.2009 was registered as Doc.No.811 of 2015 before the Sub Registrar Office, Ayyampettai. The discharge of the mortgage in Doc.No.811 of 2015 and the registration of the agreement for sale in Doc.No.811 of 2015 were not at all dealt with by the trial Court and the significance, arises when this application was filed on 23.04.2022 after the chief and cross examination of PW-1 on 11.04.2022. This application is only to fill up the lacunae in the plaint and to overcome the admissibility in the cross examination. Without going into the merits of the case and without discussing the pleadings on the side of the plaintiff and the defendant, the trial Court has allowed the application filed by the respondent/plaintiff. Hence, this Court is of the view that the plaintiff has the knowledge of the mortgage deed and cancellation of mortgage deed and he has also admitted the entire facts in his cross examination.

21. In view of the discussion made above, the present Civil Revision Petition is allowed and the order passed by the learned Principal Subordinate Judge, Thanjavur, in I.A.No.205 of 2022 in O.S.No.289 of 2016, dated 20.07.2022. is hereby set aside. As the suit is of the year 2016, the the learned Principal Subordinate Judge, Thanjavur, is directed to conclude the trial proceedings within a period of four months from the date of receipt of a copy of this order.

22. Since the respondent/plaintiff had filed the application to receive the reply statement without any reason and any cause and in the absence of any pleading in the plaint, the respondent/plaintiff shall pay a sum of Rs.10,000/- to the credit of District Legal Services Authority, Thanjavur District on or before 02.01.2026.

23. Post the matter "for reporting compliance" on 05.01.2026.