Karuppaian vs Gangaiammal
2022 Latest Caselaw 1259 Mad

                                                                                   C.R.P.(MD) No.1893 of 2021



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                       DATED :27.01.2022

                                                               CORAM

                                        THE HONOURABLE MS.JUSTICE P.T.ASHA

                                                   C.R.P(MD)No.1893 of 2021 &
                                                    CMP(MD)No.10200 of 2021


                     Karuppaian                                                           ... Petitioner
                                                               Vs.

                     1.Gangaiammal
                     2.Vasantha
                     3.Mahalakshmi
                     4.Chandra
                     5.Ravi                                                             ... Respondents


                     PRAYER: Civil Revision Petition filed under Article 227 of the
                     Constitution of India, to set aside the order and decree dated 29.10.2021
                     in I.A.No.60 of 2021 in O.S.No.10 of 2016 on the file of the District
                     Munsif cum Judicial Magistrate, Papanasam, Thanjavur District.


                                  For Petitioner           :         Mr.G.Gomathi Sankar

                                  For Respondents          :         Mr.V.Santharaman




                     Page 1 of 11
https://www.mhc.tn.gov.in/judis
                                                                                        C.R.P.(MD) No.1893 of 2021



                                                                ORDER

The first defendant whose application seeking leave to file an

additional written statement with the counter claim had been dismissed

by the District Munsif / Judicial Magistrate, Papanasam is the revision

petitioner before this Court. The respondents 1 to 4 / plaintiffs had filed

a suit in OS.No.10/2016 on the file of the District Munsif / Judicial

Magistrate, Papanasam for the following reliefs.

"Mfnt thjpfs; gpujpthjpfSf;F vjpuhf jhth tHf;F brhj;jpy; RthjPdj;jpw;F ve;j chpika[k; ,y;iybad;Wk; gpujpthjpfs; nkhro bra;J Vkhw;wp mDgtpj;J tUk; tHf;F brhj;jpy; cs;s nkw;Tiwia ePf;fp mjd; RthjPdj;ij thjpfsplk; xg;gilf;f ntz;Lbkd;Wk; gpujpthjpfs; thjpfSf;F gpd;tUk;go tHf;fpy; nfhhpathW fpilf;f ntz;Lk;/ ,t;thW thjpfSf;F ofphp tH';fp tHf;fpid bryt[j;bjhifa[ld; thjpfs; nfhhpathW ofphp bra;a[khWk; nkYk; tHf;fpw;F jFe;jJ vd;W ePjpkd;wk; fUJk; ,d;dgpw cj;jut[fs; gpwg;gpj;J jPh;g;ghf ntz;o thjpfs; rK:fk; ePjpkd;wj;ij tzf;fkha; nfhUfpwhh;fs;/"

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

2. The facts in brief are as follows.

2.1. The plaintiffs case is that the property belongs to one

Ramasamy, the husband of the first plaintiff and the father of the other

plaintiffs. He had been issued patta by the Government of Tamil Nadu

and he is in enjoyment of the said property as full owner in respect of the

suit schedule property. On 21.01.2015, the said Ramasamy died and

taking advantage of his death, the first defendant with the assistance of

the second defendant had trespassed into the suit property and had

manipulated the revenue records. The thatched hut, in respect of which,

house tax was in the name of Ramasamy till 2014, is no longer available

on site as it was demolished by the defendants. In the month of June

2015, the defendants had removed the thatched roof and put up an

asbestos sheet roof. Therefore, the plaintiffs have come forward with the

suit for the relief set out above.

2.2. The first defendant had filed written statement, in which, he

has stated that the suit property and other properties belongs to him.

Originally, the property belonged to one Sivasami Padayatchi. His son

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

Ramasamy on 24.04.1995 had executed a sale deed in favour of the

second defendant's wife Kamalam. As per the said sale deed, Kamalam

was enjoying the suit property. On 06.12.1995, the said Kamalam has

sold the property to the first defendant. From the date of the purchase,

the first defendant has been in possession and enjoyment of the suit

property. While so, it is rather strange that the legal heirs of Ramasamy

have now filed the suit. The defendants had contended that from the year

1995, they have been in continuous possession of the property.

Therefore, they sought for dismissal of the suit.

2.3. After examination of PW1, the revision petitioner / first

defendant has come forward with the impugned application to grant

leave to condone the delay in filing the additional written statement with

the counter claim. In their counter to the said petition, the plaintiffs had

contended that the petition cannot be allowed at this stage after the

evidence of the plaintiffs had been completed and the matter posted for

the second defendant evidence. In fact, the witness on the side of the

first defendant had filed a proof affidavit in lieu of Chief examination

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

and marked documents. At this stage, filing of this petition was not

maintainable and made only with the intent of harassing the plaintiffs.

2.4. The learned District Munsif / Judicial Magistrate, Papanasam

dismissed the said application on the ground that issues had been framed

and evidence had commenced. Further evidence of PW1 had been

concluded and at this stage, the petition cannot be permitted to be

allowed. Challenging the said order, the revision petitioner is before this

Court.

3. The learned counsel appearing for the petitioner would submit

that no new case had been put forward by the petitioner and it is only a

statement which is already available in the original written statement that

is sought to be filed in the form of counter claim. Therefore, there is no

new case put forward by the petitioner. He had also relied on the

Judgment in the case of Ashok Kumar Kalra vs. Wing Cdr. Surendra

Agnihotri and others reported in 2020 (2) SCC 394, wherein, the Hon'ble

Supreme Court has held that it would be in the interest of both parties to

allow the counter claim so as to avoid multiplicity of proceedings.

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

4. The learned counsel appearing for the respondents would submit

that the petition is being filed at a stage when evidence had already

commenced. He would rely on the very same Judgment to state that the

Hon'ble Supreme Court had clearly observed that it is only in exceptional

circumstances that the counter claim can be permitted to be filed after a

written statement is filed till the stage of commencing of the evidence on

the side of the plaintiffs. In the instant case, admittedly, the plaintiff had

adduced evidence as PW1 and therefore, at this juncture, the filing of this

petition is absolutely without any basis and relying on the above said

Judgment should be dismissed and the learned Judge had rightly

dismissed the same.

5. Heard the learned counsels on either side.

6. A perusal of the original written statement would clearly show

that the revision petitioner / first defendant had already pleaded long and

continued possession of the suit property. In paragraph no.4, the first

defendant would submit as follows.

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

"mjw;F gpwF fle;j 06/12/1995k; njjpapy;

jpUkjp/fkyk; mth;fs; nkw;go tPl;L kidia 1k; gpujpthjp fUg;igad; mth;fSf;F Rj;jf;fpua rhrdk; bra;J bfhLg;gjha; rk;kjpj;J. mjd; go xU fpua Mtzk; vGjpf;bfhLf;fg;gl;L. md;iwa njjpapypUe;J ehsJ njjptiu nkw;go jhth brhj;jhdJ ,e;j 1k; gpujpthjpapd; mDnghfj;jpYk;. RthjPdj;jpYk; chpikahsh; vd;w Kiwapy; ,Ue;J tUfpwJ/ jhth brhj;jpy; ,e;j 1k; gpujpthjpia jtpu ntW ahUf;Fk; ve;jtpjkhd chpiknah. mDnghfnkh. ghj;jpankh. RthjPdnkh fpilahJ/"

This statement is once again reiterated in paragraph no.5 as follows.

"mt;thW jhf;fy; bra;ahky; tpl;Ltpl;L ,d;Dk; brhy;y nghdhy; 20/01/2015 tiu mjhtJ uhkrhkp capnuhL ,Uf;Fk; tiuapy; nkw;go brhj;ijg; bghWj;J eltof;if vJt[k; vLf;fhky; tpl;Ltpl;L. Vnjh 2015 $Pd; khjj;jpy; nk';Tiuia vLj;Jtpl;L.

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

M!;bg!;lh!; c&l P ; 1k; gpujpthjpahy; khw;wg;gl;Ls;sJ vd;W 1k; gpujpthjpahy; Twpa[s;s epiyapy; mjhtJ 1995ypUe;J ,e;j gpujpthjpapd; mDnghfj;jpYk;. RthjPdj;jpYk; ,Ue;J te;Js;sJ vd;gJ thjpfshy; xg;g[f;bfhs;sg;gl;Ls;sJ/"

Once again, in paragraph no.6, the statement has been reiterated as

follows.

                                          "thjpfs;           TWtJ         nghy;           uhkrhkpf;F
                                    bfhLf;fg;gl;l            gl;lhtdj          rl;lg;go          chpa

gl;lhthf ,Ue;j nghjpYk; mth; capUld; ,Uf;Fk; fhyj;jpnyna mjhtJ 1995k; Mz;L fpl;lj;jpl;l 25 Mz;LfSf;F gpwF nkw;go brhj;jpid jpUkjp/fkyk; mth;fsplk; tpw;W mjw;F gpwF fkyk; mth;fs; 1k; gpujpthjp fUg;igad; bgaUf;F fpua rhrdk; bra;J bfhLj;j gpwF. fUg;igad; ehsJ njjptiu chpikahsh; vd;w Kiwapy; mDgtpj;J tUk;

epiyapy;. mjw;Fhpa gl;lhtpida[k; jdJ bgaUf;F rl;lg;go khw;wpf;bfhz;L mDgtpj;J tUk;

epiyapy;. ,d;dKk; Vnjh uhkrhkpf;F chpik ,Ug;gJ

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

nghyt[k;. mJ rl;lg;goahd Mtzk; vd;Wk;

Twpf;bfhs;tJ tpei ; jahf cs;sJ/"

Therefore, all the ingredients of adverse possession has been taken in the

original written statement. It is only the relief of prescriptive title by way

of counter claim that is now claimed in the additional written statement.

The Judgment relied upon by both the parties would proceed on the

footing that the counter claim after the recording of the evidence cannot

be permitted as it would amount to re-trial of the suit, leading to framing

of new issues and recording of evidences once again. In the instant case,

the first defendant had already pleaded adverse possession by raising a

pleading in his written statement. So, there would not be a question of

new evidence to be let in. At best, an additional issue would have to be

framed. It would be in the interest of all parties that the first defendant

should not be pushed to file another suit, which will keep the litigation

alive between the parties and would not bring the lis to an end.

Therefore, this is one of the exceptional circumstances as observed in the

judgment supra, where leave should be granted by condoning the delay

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

and receiving the additional written statement which includes the counter

claim.

7. In the facts and circumstances, the civil revision petition is

allowed and the order dated 29.10.2021 in I.A.No.60 of 2021 in O.S.No.

10 of 2016 on the file of the District Munsif cum Judicial Magistrate,

Papanasam, Thanjavur District is set aside. No costs. Consequently, the

connected miscellaneous petition is closed.

8. As requested by the learned counsel for the respondents, the

respondent herein shall be permitted to file a reply to the additional

written statement and the learned Judge shall frame an additional issue

and parties shall be permitted to adduce evidence and file documents.

27.01.2022

Index:Yes/No Internet:Yes/No mbi To The District Munsif cum Judicial Magistrate Court, Papanasam, Thanjavur District.

https://www.mhc.tn.gov.in/judis C.R.P.(MD) No.1893 of 2021

P.T.ASHA, J.

mbi

C.R.P(MD)No.1893 of 2021

27.01.2022

https://www.mhc.tn.gov.in/judis