Madras High Court
Periyasamy vs Kandasamy on 23 August, 2021
C.R.P. (PD) No.1681 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.08.2021
CORAM
THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN
CRP. (PD) No.1681 of 2021
and C.M.P. No.12991 of 2021
Periyasamy ... Petitioner
Vs.
Kandasamy ... Respondent
Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the fair and final order in I.A. No.2 of 2020 in A.S. No.10 of
2014 on the file of the Subordinate Judge, Rasipuram, dated 11.01.2021.
For Petitioner : Mr. J.Prithivi
For Respondent : No appearance
***
O RD E R
This petition is filed to set aside the order passed in I.A. No.2 of 2020 in
A.S. No.10 of 2014, on the file of Subordinate Judge, Rasipuram.
2. The respondent, as the plaintiff, filed a suit in O.S. No. 5 of 2011
seeking relief of declaration of title over the suit property and for possession.
The petitioner made a counter claim in the suit. The learned trial Judge, after
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C.R.P. (PD) No.1681 of 2021
contest, dismissed the suit on 03.04.2013, allowing the counter claim made by
the petitioner. Against the said judgment, the respondent has preferred an
appeal in A.S. No.10 of 2014. In the appeal, the respondent filed I.A. No.2 of
2020, seeking amendment of the grounds in the prayer of the appeal stating that
while preparing the grounds of appeal, he omitted to seek the relief of
dismissing the counter claim made by the petitioner in O.S. No.5 of 2011. The
learned trial Judge, after considering the rival submissions, allowed the
Interlocutory Application, on payment of costs. Against the said order, the
present Civil Revision Petition is preferred.
3. Learned counsel appearing for the petitioner submits that the proposed
amendment is barred by limitation. The suit was decreed on 03.04.2013, but the
present amendment petition is filed only after seven years i.e. in the year 2020.
As per Order 20 Rule 19 (2) CPC, any decree passed in a suit in which a set-
off (or counter-claim) is claimed shall be subject to the same provisions in
respect of appeal to which it would have been subject if no set-off (or counter-
claim) had been claimed. Learned counsel for the petitioner submitted that the
proposed amendment seeking to include the prayer of dismissing the counter
claim made by the petitioner, is out of time and barred by limitation.
4. This Court considered the submissions made by the learned counsel
for the petitioner. Admittedly, the suit filed by the respondent for declaration of
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C.R.P. (PD) No.1681 of 2021
title and recovery of possession was dismissed and the counter claim made by
the petitioner on the ground of adverse possession is allowed and the petitioner
was declared as the owner of the suit property. The respondent, at the time of
filing of appeal suit, should have claimed the relief to set aside the judgment
and decree passed in favour of the petitioner while seeking to set aside the
judgment and decree in O.S. No.5 of 2011. The same was not done. The main
objection raised by the learned counsel for the petitioner is that the proposed
amendment is barred by limitation. This Court is of the considered view that the
proposed amendment is absolutely necessary for rendering complete and
substantial adjudication of the matter. However, the issue with regard to
whether the proposed amendment is barred by limitation is kept open to be
decided by the learned Subordinate Judge, Rasipuram.
5. In this view of the matter, this Court is not inclined to interfere with
the order of the learned Judge and the same is confirmed. Accordingly, this
Civil Revision Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
23.08.2021
Index: Yes / No
Speaking order / Non speaking order
bkn
Copy To:
The Subordinate Judge, Rasipuram.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No.1681 of 2021
G.CHANDRASEKHARAN. J.,
bkn
CRP. (PD) No.1681 of 2021
23.08.2021
https://www.mhc.tn.gov.in/judis/
