Madras High Court
S.K.Aruna Devi vs P.S.Kanniyan on 25 June, 2021
CRP.PD.No.2477 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.2477 of 2018
and
CMP.No.15208 of 2018
S.K.Aruna Devi ..Petitioner
Vs.
1.P.S.Kanniyan
2.S.K.Kamalakannan ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the fair and decretal order dated
12.07.2018 in IA.No.405 of 2018 in OS.No.84 of 2017 passed by the
II Additional District Judge, Poonamallee.
For Petitioner : Mr.Deaik Murali
for M/s.R and P Partners
For Respondents : Mr.Manoj Sreevatsan
ORDER
This Civil Revision Petition is filed against the fair and
decretal order dated 12.07.2018 passed in IA.No.405 of 2018 in
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CRP.PD.No.2477 of 2018
OS.No.84 of 2017 passed by the II Additional District Judge,
Poonamallee, thereby allowing the petition to file additional written
statement with counter claim.
2. The petitioner is the plaintiff and the respondents are the
defendants. The petitioner filed suit for partition. After filing written
statement, the respondents filed petition seeking permission to file
additional written statement with counter claim. The same was allowed
and aggrieved by the same, the present civil revision petition has been
filed.
3. The learned counsel for the petitioner would submit that
the petitioner filed suit for partition, in which counter claim is not
maintainable. After the suit was filed on 05.05.2017 and respondents
filed written statement on 29.08.2017. Thereafter, issues were framed
and the suit was ripe for trial. On 06.12.2017, the petitioner filed proof
affidavit and when PW1 was in box for cross examination, the
respondents filed petition seeking permission to file additional written
statement with counter claim. It is not permissible under law and it is
barred under Order VIII Rule 6A of CPC. Once the trial commenced,
the respondents are barred from filing additional written statement
with counter claim. Without considering the said proportion of law, the
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CRP.PD.No.2477 of 2018
court below allowed the same. In support of his contention, he relied
upon the following judgments:
(i) Bollepanda P.Poonacha and another Vs. K.M.Madapa
reported in 2008 (2) CTC 523
(ii) R.Vino @ Veincentza and A.Davidson Vs. Maria Grace
Benefit Fund Ltd. reported in MANU/TN/2182/2008
(iii) T.M.Durairaj Vs. S.Arulprakash reported in
2014 (1) CTC 79
(iv) Chinnammal Vs. Shanmugam reported in
MANU/TN/6184/2006
4. Per contra, the learned counsel for the respondents would
submit that in the suit for partition, counter claim is very much
permissible and as such counter claim is maintainable and the court
below rightly allowed the petition. For filing additional written
statement with counter claim, the respondents clearly stated in the
affidavit filed in support of the petition seeking permission to file
additional written statement that due to filing of the suit for partition,
their name and fame were spoiled among the relatives and also in the
locality. Therefore, the petitioner is liable to pay damages. Though the
petitioner is not entitled for any share in the property, the respondents
filed their written statement stating that they are agreed to settle
admeasuring 1.50 acres in favour of the petitioner herein. But the
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CRP.PD.No.2477 of 2018
petitioner refused to receive the same. He further submitted that in
respect of position of law is concerned, it is very clearly settled law by
the Hon'ble Supreme Court of India in the case of Ashok Kumar
Kalra Vs. Surendra Agnihotri and Ors reported in
MANU/SC/1590/2019, wherein it is held that Order VIII Rule 6A of
CPC does not mandate an embargo on filing the counter claim after
filing the written statement. Therefore, the court below rightly allowed
the petition and prayed for dismissal of the civil revision petition.
5. Heard, Mr.Deaik Murali, the learned counsel for the
petitioner and Mr.Manoj Sreevatsan, the learned counsel for the
respondents.
6. The petitioner is the plaintiff and the respondents are the
defendants. The petitioner filed suit for partition and the respondents
filed their written statement. After filing proof affidavit of PW1, the
respondents sought for permission to file additional written statement
with counter claim.
7. The only issue arises for consideration before this Court is
that whether Order VIII Rule 6A of CPC bar the filing of counter claim
after commencement of trial? Order VIII Rule 6A specifies about the
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CRP.PD.No.2477 of 2018
counter claim by defendant. It is relevant to extract Order VIII Rule 6A
of CPC as follows:
6A. 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 to 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.
8. In this regard, the learned counsel of the petitioner relied
upon the judgment in the case of Bollepanda P.Poonacha and
another Vs. K.M.Madapa reported in 2008 (2) CTC 523, wherein
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CRP.PD.No.2477 of 2018
the Hon'ble Supreme Court of India held in the matter arising out of
seeking amendment of written statement that allowing the
amendment of written statement either to alter or to take additional
plea to subserve ultimate cause of justice is a discretionary
jurisdiction. But it should be exercised in judicious manner. The court
could treat counter claim as cross suit. The parliament has placed an
embargo by inserting Order VIII Rule 6A of CPC and as such the court
jurisdiction cannot be exercised where there is statutory bar.
9. He also relied upon the judgment in the case of
T.M.Durairaj Vs. S.Arulprakash reported in 2014 (1) CTC 79,
wherein this Court held that by filing of counter claim after
commencement of trial by way of additional written statement cannot
be filed belatedly and law of limitation squarely applies to the counter
claim.
10. He also relied upon the judgment in the case of
Chinnammal Vs. Shanmugam reported in MANU/TN/6184/2006,
wherein this Court held that undoubtedly prejudice would be caused to
the plaintiff when new plea is put forward at a belated stage and the
plaintiff will now be forced to file a reply statement and as a
consequence thereof, fresh and different issues will have to be framed
and the trial will have to begin once over again.
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CRP.PD.No.2477 of 2018
11. In the case on hand, after filing the suit, the respondents
filed their written statement on 29.08.2017. Immediately, on
06.12.2017, the petitioner filed her proof affidavit. At that juncture, on
02.03.2018, the respondents came forward with the petition seeking
permission to file additional written statement with counter claim.
Therefore, the counter claim was filed immediately after filing proof
affidavit of PW1. It is also seen that after filing the suit, there was
negotiation between them and in fact, the respondents agreed to
settle the property admeasuring 1.50 acres in favour of the petitioner
herein. But she refused to receive the same. Thereafter, they filed
additional written statement with counter claim. In support of his
contention, the learned counsel for the respondents relied upon the
judgment in the case of Ashok Kumar Kalra Vs. Surendra
Agnihotri and Ors reported in MANU/SC/1590/2019, wherein it is
held as follows:
20. We sum up our findings, that Order VIII Rule 6A of the
CPC does not put an embargo on filing the counterclaim 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 counterclaim, which is pegged till the issues are framed.
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CRP.PD.No.2477 of 2018
The court in such cases have the discretion to entertain filing of the
counterclaim, 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
counterclaim.
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.
The Hon'ble Supreme Court of India held that Order VIII Rule 6A of
CPC does not put an embargo on filing the counter claim after filling
the written statement. The court has discretion to allow the counter
claim to be filed after written statement in exercise of its power under
Order VIII Rule 9 and Order VI Rule 17 of CPC. Counter claim may be
preferred by way of amendment incorporated subject to the leave of
the court in a written statement already filed.
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CRP.PD.No.2477 of 2018
12. As stated supra, in the case on hand, immediately after
filing proof affidavit by PW1, the respondents filed petition seeking
permission to file additional written statement with counter claim for
the reason that when the respondents are willing to settle about 1.50
acres in favour of the petitioner, the petitioner refused to receive the
same. Therefore, their name and fame were spoiled with their relatives
in their locality. Therefore, the above judgment cited by the learned
counsel for the respondents is squarely applicable to the case on hand,
and the judgments relied upon by the learned counsel for the
petitioner are not helpful to the case of the petitioner.
13. In view of the above discussion, this Court finds no
infirmity or illegality in the order passed by the court below.
Accordingly, this civil revision petition is dismissed. Consequently,
connected miscellaneous petition is closed. No order as to costs.
25.06.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.PD.No.2477 of 2018
G.K.ILANTHIRAIYAN,J.
lok
To
The II Additional District Judge,
Poonamallee.
CRP.PD.No.2477 of 2018
25.06.2021
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