Mukesh Kumar Jain, vs Elika Veera Raghavaiah,
2022 Latest Caselaw 7411 AP

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      THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

            CIVIL REVISION PETITION No.7346 OF 2017

ORDER:

This Civil Revision Petition is filed by the petitioners/D.1, D.2

under Article 227 of the Constitution of India against the Orders passed

by learned IV Additional Senior Civil Judge, Guntur, in I.A.No.192 of

2017 in O.S.No.480 of 2013 wherein and whereby the learned trial

Judge dismissed this petition filed by the petitioners/D.1, D.2 under

Section 151 of Civil Procedure Code (in short C.P.C) and refused to

permit the petitioners to file counter-claim enclosed along with the

petition.

2. Before the trial Court petitioners have filed petition stating that

they filed counter-claim petition in the suit on 26.04.2016 in I.A.No.110

of 2017, which was posted for counter on 14.02.2017 on which date

the respondent/plaintiff advocate represented to the Court that without

application for filing of counter-claim cannot be entertained thereby

trial Court felt it necessary with such observation directed them to

move separate application seeking permission to file counter-claim and

closed I.A.No.110 of 2017. They submits that they represented

I.A.No.110 of 2017 on 05.11.2016 along with Judgment of Hon'ble

Supreme Court wherein it is held that counter-claim can be filed having

the cause of action within time delivering the defence and thereby

there is no need to take separate permission for filing counter-claim

but to avoid unnecessary delay, they filed petition seeking permission

from the Court to file counter-claim. They prays to permit them to file

counter-claim.

3. For which the respondent/plaintiff filed counter before trial

Court denying the averments in the affidavit of the 1st petitioner. It is

the contention of the respondent that there are no grounds to permit

the petitioners to file counter-claim seeking relief of specific

performance of power of attorney, which was executed by his mother.

He also stated that even in the event of agreement of sale is said to

have been executed by his mother, the petitioners have to claim relief

within three years from the date of death of his mother

Smt.Seetharavamma. He has mentioned about the date of death of his

mother due to that General Power of Attorney executed by his mother

if any becomes defunt, functus-officio and no valid rights to pass, or

execute any document, as a power of attorney automatically ceases,

and no rights would flow. He also stated that his mother died on

10.10.1997, but the sale deeds said to have been executed in favour of

petitioners/D.1, D.2 on 18.04.2001 and 23.08.2003 have no legal

force. It is also the contention of the respondent/plaintiff that contents

in the counter-claim filed by the petitioners is nothing but replica of

contents in the written statement wherein there is no mention of relief

of specific performance and the petition filed by the petitioners is only

to drag on the proceedings by taking two divergent pleas, which are

inconsistent, which cannot be permitted under law. He prays to dismiss

the petition.

4. Learned trial Judge after hearing both sides dismissed the

petition filed by the petitioners/defendants seeking permission to file

counter-claim by observing that counter-claim, which the petitioners

sought to file is not in accordance with order VIII Rule 6A(1) of C.P.C,

which cannot be entertained.

5. Aggrieved by the orders passed by leaned trial Judge the

present Civil Revision Petition is filed by the petitioners/defendants

stating that orders passed by the learned trial Judge are contrary to

law, weight of evidence and probabilities of the case. They submits

that trial Court erred in dismissing the petition filed by them seeking

permission to file counter-claim, which filed as per observations made

by the Court in I.A.No.110 of 2017 and trial Court failed to follow ratio

laid down by Hon'ble Supreme Court in Mahendra Kumar case. It is

the contention of the revision petitioners that they can maintain a

counter-claim as per Order VIII Rule 6A C.P.C as the cause of action

has accrued to them before delivering his defence. They prays to allow

the revision petition.

6. I have heard learned counsel Mr.K.Srinivasa Murthy,

representing on behalf of Mr.N.Siva Reddy, learned counsel for the

revision petitioners. He would content that orders passed by learned

trial Judge dismissing seeking permission to file counter-claim are

erroneous as the petitioners being defendants in the suit can file

counter-claim even after filing of their written statement in the suit,

which failed to consider by the learned trial Judge. He further submits

that to avoid multiplicity of litigation, the petitioners came up with

counter-claim seeking relief of specific performance against the

respondent/plaintiff, which erroneously dismissed by the learned trial

Judge. He relied on following precedent law:-

1)Mahendra Kumar and another Versus. State of Madhya

Pradesh and others AIR 1987 page 1395.

2)Ashok Kumar Kalra...Petitioner Versus Wing CDR.

Surendra Agnihotri and others... Respondents in SLP (C)

No.23599 of 2018 Judgment dated 19.11.2019.

He prays to allow the revision petition.

7. Now the issue that emerges for consideration by this Court is:-

"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Article 227 of Constitution of India?"

POINT:-

8. Before going to the merit of the case, it would be beneficial

quote under Order VIII Rule 6(A) C.P.C, which reads as under:-

6-A.Counter claim by defendant: (1)A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2)Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the

defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

9. A right to file counter-claim is an additional right. The cause of

action must accrue either before or after filing the suit but before the

defendant has raised his defence. However, Hon'ble Apex Court in

Mahindra Kumar case refer supra held that, which reads as under:-

The next point that remains to be considered is whether Rule 6A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the writ- ten statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the coun-ter-claim after the filing, of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1) of the Code of Civil Procedure. As the cause of action for the counter- claim had arisen before the filing of the written statement, the counter-claim was,

therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter- claim, which is treated as a suit under section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the fight to sue. The learned District Judge and the High Court were wrong in dismissing the coun-ter-claim.

10. The Hon'ble Supreme Court in Ashok Kumar

Kalra...Petitioner Versus. Wing CDR. Surendra Agnihotri and

others...Respondents case refer supra held that counter-claim can

be for claim of damages or otherwise, counter-claim should relate to

the cause of action, which may accrue before or even after filing the

suit and if the cause of action in the counter-claim relates to one

accrued after filing of suit, it should be one accruing before filing of the

written statement or the time given for the same. It is further held that

scheme of Order VIII C.P.C, it unequivocally points out the legislative

intent to advance the cause of justice by placing embargo on the

belated filing of written statement, set-off and counter-claim. Now, it

would be beneficial to extract para 20 of the Judgment, which reads as

under:-

"20. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

i. Period of delay.

ii. Prescribed limitation period for the cause of action pleaded.

iii. Reason for the delay.

iv. Defendant's assertion of his right.

v. Similarity of cause of action between the main suit and the counter-claim.

vi. Cost of fresh litigation.

vii. Injustice and abuse of process.

viii. Prejudice to the opposite party.

ix. and facts and circumstances of each case.

x. In any case, not after framing of the issues."

11. The ration laid down by Hon'ble Apex Court full bench held that

there cannot be a straitjacket formula, rather there are numerous

factors which needs to be taken into consideration before admitting

counter-claim. Though counter-claim can be permitted to be filed after

filing of written statement when it satisfies three conditions

enumerated in it still Court as to see facts of the case while permitting

the petitioners to file counter-claim.

12. In the present case, suit is filed by the respondent against the

petitioners for cancellation of registered sale deeds dated 18.04.2001

and 23.08.2003 executed by late Mr.Kurra Veeranjaneyulu in favour of

the respondent as General Power of Attorney agent of

Smt.Seetharavamma, who is mother of the respondent/plaintiff, which

sale deeds said to be executed after the death of Smt.Seetharavamma

as she said to be died on 10.10.1997. The respondent also sought for

relief of permanent injunction against the respondent. Then the

defendants have filed written statement, which contents are similar to

the contents in the counter-claim stating that in their sale deeds, it was

clearly mentioned that Smt.Seetharavamma was alive on the date of

execution of sale deeds by General Power of Attorney agent due to

that it is for the respondent/plaintiff to prove that his mother died on

10.10.1997. They claimed that Mr.Kurra Veeranjaneyulu being General

Power of Attorney holder of Smt.Seetharavamma as per the contents

of said registered General Power of Attorney admitted about execution

of agreement of sale in favour of Mr.Kurra Gandhi on 06.03.1985 and

possessory agreement dated 05.07.1986. They also referred about

earlier litigation between Mr.Kurra Gandhi and Smt.Seetharavamma in

O.S.No.520 of 1986 on the file of III Additional Junior Civil Judge,

Guntur, which suit was dismissed with the intervention of elders and

thereafter Smt.Seetharavamma said to be executed registered General

Power of Attorney dated 08.07.1986 in favour of Mr.Kurra

Veeranjaneyulu wherein she said to be stated that she received entire

sale consideration and admitted sale agreement dated 06.03.1985 and

executed possessory agreement dated 05.07.1986 and requested

General Power of Attorney holder to register sale deed or sale deeds in

favour of Mr.Kurra Gandhi or his order and thereafter they purchased

suit schedule property from Mr.Kurra Gandhi under two different sale

deeds, dated 18.04.2001 and 23.08.2003 for a valid consideration and

at the request of Mr.Kurra Gandhi the General Power of Attorney

holder of Mr.Kurra Veeranjaneyulu executed sale deeds on behalf of

Smt.Seetharavamma. The defence of the petitioners clearly shows that

they are claiming title and possession over the plaint schedule property

basing on register sale deeds said to be executed by late Mr.Kurra

Veeranjaneyulu dated 18.04.2001 and 23.08.2003 as they purchased

plaint schedule property from Mr.Kurra Gandhi said to be possessory

agreement of sale holder from Smt.Seetharavamma, who was

admittedly original title holder of plaint schedule property and mother

of the respondent/plaintiff herein. The contention of

respondent/plaintiff is that his mother died on 10.10.1997, which is

well before execution of alleged two sale deeds in favour of the

petitioners/defendants by General Power of Attorney holder of her

mother Mr.Kurra Veeranjaneyulu due to that the said sale deeds have

no force of law and they are void documents and he filed suit for

cancellation of those sale deeds. The petitioners herein has stated in

their counter claim, it would be beneficial to extract para No.46 of their

counter-claim, which read as under:-

"46.It is submitted that as he has been stated above, even otherwise, without admitting any allegation of the plaint and under the protest of all the rights of the petitioners/defendants mentioned in their written statement of the above suit, filed this counter-claim, as they entitled, even, according to plaint allegations, that the plaintiff, as one of the legal heir of Elika Seetharavamma, has to register the sale deed for the suit schedule mentioned property in favour of the petitioners/defendants as per their sale deeds, which were registered by the General Power of Attorney holder of Elika Seetharavamma, stating that she was alive by that time of registering the sale deeds No.3458 of 2001, dated 18.04.2001 and 7932 of 2003, dated 23.08.2003. As per allegations of the plaintiff, in the plaint, for the very reason that the executant Elika Seetharavamma admitted, accepted and agreed, and also stated that against her sale agreement, dated 06.03.1985 the sale deeds will be executed in favour of Kurra Gandhi or his order, by her or her legal heirs, and just being the plaintiff is claiming to be

the legal heir of Elika Seetharavamma, he has to register the sale deed in favour of the petitioners/defendants, even in absence of the same as per the allegations of the plaintiff."

13. On perusal of contents of para No.46 of counter-claim, which

shows that the petitioners are seeking specific performance of a

contract in pursuance of sale agreement dated 06.03.1985 executed by

Smt.Seetharavamma in favour of Mr.Kurra Gandhi by the

respondent/plaintiff, who is claiming to be legal heir of

Smt.Seetharavamma. They also sought relief at para No.48 praying the

Court to allow the counter-claim directing the respondent/plaintiff to

execute deed of confirmation of their sale deeds dated 18.04.2001 and

23.08.2003 or register the sale deeds in their favour in respect of suit

schedule property, which clearly shows that the petitioners are now

claiming relief of specific performance contract in pursuance of alleged

agreement of sale dated 06.03.1985 executed by Smt.Seetharavamma

in favour of Mr.Kurra Gandhi, but admittedly they obtained sale deeds

dated 18.04.2001 and 23.08.2003 from General Power of Attorney

holder of Smt.Seetharavamma i.e., Mr.Kurran Anjaneyulu, who is no

more. The respondent/plaintiff is claiming that by the date of execution

of registered sale deeds by late Mr.Kurra Anjaneyulu his mother is no

more due to that those sale deeds are void documents. After

considering nature of counter-claim sought by the petitioners in a suit

filed by respondent/plaintiff and by following the ratio laid down by

Hon'ble Apex Court in Ashok Kumar Kalra case referred supra this

court is of considerable opinion that cause of action on which suit filed

by respondent is quite different than cause of action on which now the

petitioners intended to file counter-claim and considering the pleadings

on both sides counter-claim of the petitioners seeking relief of specific

performance of contract in pursuance of agreement of sale dated

06.03.1985 is permitted, certainly will changes the nature of the suit,

which cannot be permitted in the present nature of suit filed by the

respondent/plaintiff. This Court did not find any illegality or irregularity

in the orders passed by learned trial judge refusing to permit the

petitioners to file counter-claim warrants interference by this Court

invoking the jurisdiction under Article 227 of Constitution of India.

14. In the result, the Civil Revision Petition is dismissed. No order as

to costs.

Consequently, miscellaneous petitions pending, if any, shall

stand closed.

__________________________ JUSTICE BANDARU SYAMSUNDER Date :27.09.2022 chb

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

CIVIL REVISION PETITION No.7346 OF 2017

Dated : 27.09.2022

chb