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Vijayakumar v/s Dharmaraj & Others

    C.R.P.(PD)(MD)No.698 of 2018(PD) & C.M.P.(MD).Nos. 1140 of 2020, 3104 of 2018
    Decided On, 03 March 2020
    At, Before the Madurai Bench of Madras High Court
    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN
    For the Petitioner: J. Anandhavalli, Advocate. For the Respondents: R1, R3 to R5, C. Godwin, Advocate, R2, No appearance.


Judgment Text
(Prayer: This Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 11.01.2018 passed in I.A.No.555 of 2013 in O.S.No.135 of 2010 by the Subordinate Court, Kuzhithurai.)

The first respondent filed a suit in O.S.No.135 of 2010 against the second respondent for declaration and injunction, in which, the petitioner has been arrayed as the second defendant. After serving the summons, both the defendants engaged a counsel and also they have filed written statement. In the suit, written statement was filed by the first defendant and on the same day, a memo was filed stating that the second defendant had adopted the written statement filed by the first defendant. It had happened in the year 2011. subsequently, in the year 2013, the petitioner herein filed an application in I.A.No.555 of 2013 to delete the memo filed on behalf of the 2nd defendant for adopting the written statement filed along with this petition. He was not aware of the averment made in the written statement filed by his father/first defendant. Therefore, he wanted to delete the adoption memo filed by the petitioner herein and wanted to file a fresh written statement independently, as if it is owned by the first defendant. The said I.A was dismissed by the trial Court. Challenging the said order, the present Civil Revision Petition has been filed.

2. The learned counsel for the petitioner submitted that the first defendant is the father and the second defendant is the son, who has purchased a portion of the property from his father/first defendant and also the first defendant has settled the same in favour of the second defendant. By way of partition, the second defendant is entitled to get possession and enjoyment of the property. At the time of filing of the suit, he was not in India, he was in Oman and he was not aware of the averments made in the written statement filed by his father and he came to India in the year 2013 and after going through the written statement, he came to know that some of the averments have been wrongly pleaded. Therefore, he wanted to delete the adoption memo filed on behalf of the second defendant. The learned trial Judge has failed to consider and dismissed the petition that as if he has filed additional written statement, which warrants interference by this Court.

3. The learned counsel for the petitioner would submit that the petitioner is none other than the son of the first defendant and he is fully aware that both of them engaged only one counsel and given an instruction to them, that was not aware of the written statement filed by his father. Further, the second defendant himself has not filed any petition and the written statement has been given only by the power of attorney alone and he cannot file the affidavit and written statement on behalf of the second defendant as if he was aware of all these facts. Further, he had admitted that when the petitioner has withdrawn the written statement already filed by the first defendant, he has put to hardship to establish the case and it is a settled proposition of law that admitted fact need not be proved. Therefore, the order of the trial Court is just and fair and no interference is called for by this Court.

4. I have heard the submissions made by both sides and also perused the materials available on record.

5. Admittedly, the trial has not yet commenced. The first defendant is the father and the second defendant is the son and both of them engaged one counsel and the first defendant has filed the written statement on behalf of the second defendant. At the time of filing the written statement and the adoption memo filed by the first defendant, the petitioner/2nd defendant is not in India, he was in abroad and also it is not in dispute that he came to India in the year 2013 and he gone through the written statement filed by his father/first defendant and some of the averments against the factual position and therefore, he wanted to withdraw the adoption memo and to file a fresh written statement. Admittedly, the petitioner and the first defendant are the father and the son and even the petitioner purchased the property from his father either by way of sale deed or the settlement deed and further he has stated that he is not aware of the averments in the written statement and he has no cordial relationship with his father and as per the learned counsel for the petitioner, the trial is not yet commenced and the memo should be deleted and the written statement filed by the petitioner separately by the second defendant. The respondent/plaintiff has got an opportunity to file a reply statement and also the plaintiff herein to establish the case and he may take advantage of liberal view by the defendant and if the memo is deleted and written statement is cancelled, no prejudice would be caused to the first respondent/plaintiff.

6. In view of the above, the order passed by the learned Trial Judge in I.A.No.555 of 2013 is set aside and the adoption memo filed on behalf of the second defendant on 22.02.2011 is deleted and the second defendant is at liberty to file a fresh written statement, after obtaining the leave of the Court and in case, if he seeks leave of the Court, the trial Court is directed to consider

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the said application on its own merits and permit him to file written statement. In case, the trial Court allows the application and accepts the written statement, the first respondent/plaintiff is at liberty to file his reply statement. Since the matter is pending from 2010, the trial Court is directed to consider and dispose the case within a period of six months from the date of receipt of a copy of this order. No costs. However, the observation made by this Court will not have any influence, while deciding the said application. Consequently, connected miscellaneous petitions are closed.
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