S. Thirugnanasambandam v. Kaliyaperumal Chettiar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28-11-2007CORAM :THE HONOURABLE MR. JUSTICE A.KULASEKARANC.R.P. (PD) No. 1654 of 2006andM.P. No. 1 of 2006S. Thirugnanasambandam.. Petitioner VersusKaliyaperumal Chettiar .. Respondent Revision under Article 227 of the Constitution of India against the Order dated 14.09.2006 made in I.A. No. 119 of 2006 in O.S. No. 2 of2005 on the file of the Principal Sub Court, Cuddalore. For Petitioner :Mr. K. Kannanfor Mr. R. Sunilkumar For Respondent :Mr. K.A. RavindranORDERThe defendant in O.S. No. 2 of 2005 on the file of the PrincipalSubordinate Judge, Cuddalore is the revision petitioner herein. Thesaid suit was filed by the respondent herein for specific performancebased on the agreement for sale dated 19.09.1992. In the said suit, theplaintiff/ respondent herein was examined in part. At this stage, thepetitioner has filed I.A. No. 119 of 2006 under Order 8 Rule 6-A CPCseeking leave of the Court to file counter-claim, which was dismissed bythe trial court on 14.09.2006. Challenging the said order dated14.09.2006, the present revision petition has been filed.

Mr. Kannan, learned counsel appearing for the petitionersubmitted that the petitioner in his written statement has taken a pleathat the agreement of sale dated 19.09.1992 is fabricated one; therespondent took possession of the suit property from the petitioner'stenants unlawfully; that the respondent herein has filed O.S. No. 372 of2002 on the file of the Additional District Munsif Court, Cuddalore forbare injunction in respect of the very same property; that in the saidsuit, a handwriting expert was appointed, who filed his report to theeffect that the sale agreement dated 19.09.1992 was forged; that therespondent herein abandoned the suit without prosecuting it in order toavoid adverse finding from the Court and thereafter he filed the presentsuit in O.S. No. 2 of 2005; that in the event of dismissal of thepresent suit, the possession of the respondent herein would be declared https://hcservices.ecourts.gov.in/hcservices/ as unlawful, hence, the petitioner was constrained to file a counter-claim otherwise he has to file a separate suit for recovery ofpossession, that too after indefinite period only when the suit isdisposed of ultimately; that the petitioner is a senior citizen; that inthe interest of both the parties, the permission sought for by thepetitioner to file a counter-claim ought to have been allowed by thetrial court, but it failed and prayed for setting aside the same byallowing of the revision petition.

Mr. Ravindran, learned counsel appearing for the respondentsubmitted that if the permission sought at this distant point of time isallowed, it would definitely prolong the trial, complicate the smoothflow of proceedings and cause delay in progress of the suit. In anyevent, after examination of PW1 in part, the petitioner has applied forleave to file the counter-claim, hence, the court below has rightlyrejected the application seeking leave to file the counter claim andprayed for dismissal of the revision petition.

This Court carefully considered the argument of counsel forboth sides and perused the records. The new Rules 6A to 6G of OrderVIII CPC were inserted making statutory provisions for admissibility ofcounter-claim to enable the defendant to enforce an independent righteven unconnected with the claim made in the plaint. As per Section 6A of Order 8 CPC, the counter-claim has to be treated as a plaint and isgoverned by rules applicable to the plaints. A counter-claim has to befiled within the limitation period and the counter-claim survivesdespite dismissal of the suit filed by the plaintiff on account ofwithdrawal or even on merits. The object of the provisions for settingoff counter-claim before filing of written statement is disposal of thesuit cannot be delayed.

No doubt the object behind providing that a counter-claim mustbe made at the time of filing written statement or before time limitedfor submission of written statement has expired is, in case counter-claim is not filed simultaneously with the filing of the writtenstatement, however, the court can allow an amendment so as to permit thedefendant to make the counter-claim provided the relief do not exceedthe pecuniary limits of the jurisdiction of the Court. In this case, the bar of limitation and exceeding the pecuniary jurisdiction of thecourt if counter claim is allowed are not canvassed by the respondent.

The Honourable Supreme Court in the decision reported in(Ramesh Chand Ardawatiya vs. Anil Panjwani) 2003 (3) MLJ 26 (SC) heldthat there are three modes of pleading or setting up a counter claim ina civil suit. Firstly, the written statement filed under Rule 1 mayitself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter claim against the claim of the plaintiffpreferred in exercise of legal right conferred by Rule 6-A. Secondly, acounter claim may be preferred by way of amendment incorporated subjectto the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleadingunder Rule 9. In the latter two cases the counter-claim thoughreferable to Rule 6-A cannot be brought on record as of right but shall https://hcservices.ecourts.gov.in/hcservices/ be governed by the discretion vesting in the Court, either under O.6Rule 17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.8,Rule 9 of the C.P.C. if sought to be placed on record by way ofsubsequent pleading.

The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties byenabling claims and counter-claims, that is, all disputes between thesame parties being decided in the course of the same proceedings. Order8 Rule 9 CPC says that no pleading subsequent to the written statementof a defendant other than by way of defence to set-off or counter-claimshall be presented except by the leave of the Court and upon such termsas the Court thinks fit; but the court may at any time require a writtenstatement or additional written statement from any of the parties andfix a time of not more than thirty days for presenting the same. Thesaid Rule 9 of Order 8 CPC does not confer any right and it is only whenthe Court, in the facts and circumstance of the case is of the opinionthat pleadings subsequent to the written statement is necessary in orderto effectually determine the controversy before it, that it may requirethe defendant to file such additional pleadings namely additionalwritten statement or counter-claim. This rule gives discretion to the Court to allow the defendant to file additional pleadings, set-off orcounter-claim. Even in the absence of any claim or set-off or counter-claim, if the Court is satisfied of the relevancy of subsequentpleadings, it can grant leave to raise subsequent pleadings. Grantingsuch leave to file additional pleadings by the defendant to bringadditional facts on record would not mean that the Court will alwaysaccept them as true. It merely gives the defendant an opportunity toprove his case and bring the truth to light.

The petitioner in his written statement took the plea that theagreement of sale dated 19.09.1992 is a fabricated one and in theearlier suit filed by the respondent in O.S. No. 372 of 2002, an expertwas appointed, who stated to have given a report that the said agreementis fabricated, hence, the respondent allegedly not prosecuted the saidsuit in O.S. No. 372 of 2002 as he felt that there is every possibilityof losing it and adverse finding could be made against the saleagreement and subsequently filed the present suit in the year 2005,hence, leave was sought for to file counter-claim.

In the judgment of the Honourable Supreme Court reported in(Ramesh Chand Ardawatiya vs. Anil Panjwani) 2003 (3) MLJ 26 (SC), whichwas relied on by the trial court for dismissing I.A. No. 119 of 2006filed by the petitioner, the defendant therein has not filed his writtenstatement, hence, it was rejected by the trial court. Indeed, theirLordships in Para-28 of the said judgment held that 'certainly acounter-claim is not entertainable when there is no written statement onrecord. There being no written statement filed in the suit, thecounter-claim was obviously not set up in the written statement within https://hcservices.ecourts.gov.in/hcservices/ the meaning of Rule 6-A. There is no question of such counter-claimbeing introduced by way of amendment; for there is no written statementavailable to include a counter claim therein. Equally there would be noquestion of a counter-claim being raised by way of subsequent pleadingas there is no previous pleading on record. In the present case, thedefendant having failed to file any written statement and also havingforfeited his right of filing the same, the trial court was fullyjustified in not entertaining the counter-claim filed by the defendant-appellant.'

Whereas, in this case, as mentioned above, written statementwas filed in which the petitioner has taken a plea that the saleagreement is fabricated one, possession of the suit property was not atall delivered by the petitioner but possession was illegally taken bythe respondent from the petitioner's tenants. Hence, the decision ofthe Honourable Supreme Court reported in (Ramesh Chand Ardawatiya vs. Anil Panjwani) 2003 (3) MLJ 26 (SC) cannot be made applicable to thefacts and circumstance of the case on hand.

The other reason assigned by the court below for dismissingI.A. No. 119 of 2006 is the same is filed belatedly. While consideringadditional pleadings by the defendant, the court cannot go into themerits of the case but in this case the court below had gone into thesame, which shall not be entertained. The courts are expected to beliberal in granting leave, but on such terms as it thinks fit in thecircumstance of the case. A joint reading of Rules 6A and 9 of Order 8CPC makes it clear that the Court may at any time allow the additionalpleadings of the defendant. It is the duty of the court to consider onlywhether the said pleadings of the defendant is necessary for determiningthe real question in controversy between the parties and suchapplication seeking leave to file additional pleadings can be allowedwithout causing injustice to the other side. In this case, the trialcourt has failed to consider the above said factors, hence, the reasonsassigned by the trial court that the application is filed belatedly inso far as this case on hand is concerned is untenable. When we lookinto the case in different angle, the petitioner seeks for recovery ofpossession in case the suit was dismissed. For that, it is notnecessary for him to go for a fresh suit because in this suit, bothparties can adduce evidence, based on the said evidence, the claim ofboth the parties can be decided by the trial court, such approach wouldavoid multiplicity of proceedings.

Hence, in order to render justice to the parties, this Courtis of the view that it is absolutely necessary to grant leave to thepetitioner to file counter-claim as sought for. Moreover, as mentionedabove, granting leave to file additional pleadings by the defendant tobring additional facts on record would not mean that the Court willalways accept them as true. It merely gives the defendant anopportunity to prove his case and to bring the truth to light. https://hcservices.ecourts.gov.in/hcservices/