Madras High Court
Krishnasamy vs Periyasamy on 5 April, 2023
C.R.P(MD)No.328 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.328 of 2020
and
C.M.P(MD)No.1883 of 2020
Krishnasamy ... Petitioner/Petitioner/
2nd Defendant
Vs.
Periyasamy ... Respondent/Respondent/
Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to call for the records pertaining to the order, dated
22.11.2019 made in I.A.No.260 of 2019 in O.S.No.207 of 2013 on the
file of the Principal District Munsif Cum Judicial Magistrate Court,
Peraiyur.
For Petitioner : Mr.Silambarasan
For Respondent : Mr.Nallathambi Raj
For Mr.K.Samidurai
ORDER
The present civil revision petition has been filed against the order,
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
dated 22.11.2019 made in I.A.No.260 of 2019 in O.S.No.207 of 2013 on
the file of the District Munsif Cum Judicial Magistrate Court, Peraiyur.
2. The petitioner is the second defendant before the District
Munsif Cum Judicial Magistrate Court, Peraiyur in O.S.No.207 of 2013
filed by the respondent herein. Originally, the suit is of the year 2009.
Subsequently, it was renumbered as O.S.No.207 of 2013. After the trial
was complete and the case was listed for arguments, the petitioner has
filed an application for amending the written statement under Order 6
Rule 17 of C.P.C. The reasons given by the petitioner in the affidavit
filed in support of the I.A.No.260 of 2019 are that the respondent herein
has colluded with the first defendant, who is none other than the son of
the respondent herein.
3. It is further submitted that the property was mortgaged by the
first defendant (not a party to the present proceeding) and that the
petitioner has been in possession of the suit schedule property as a
mortgagee from the year 1987. That apart, it is submitted that the
petitioner has exercised his right over the property as an owner of the
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
property all through from the year 1987. Therefore, to avoid multiplicity
of the proceedings, the petitioner was constrained to file I.A.No.260 of
2019 in O.S.No.207 of 2013.
4. The learned counsel for the petitioner has placed reliance on the
decision of the Hon’ble Supreme Court in the case of Life Insurance
Corporation of India Vs Sanjeev Builders Private Limited and others
(Civil Appeal No.5909 of 2022). A specific reference is made to
paragraph No.17, which reads as under:
"17. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
following questions of law fall for the consideration of this
Court:
1. Whether the High Court committed any material
irregularity or jurisdictional error going to the root of the
matter in passing the impugned order?
2. Whether the provisions of Order II Rule 2 CPC can be
made applicable to an amendment application?
3. Whether the amendment of plaint for the purpose of
enhancing the amount towards damages could be said to be hit
by the doctrine of constructive res judicata?
4. Whether the judgment and order passed by a
coordinate Bench of this Court in the case of Life Insurance
Corporation of India (supra) between the same parties has any
bearing on the present appeal?
5. Whether the present appeal is covered by the proviso
to Section 21(5) and Section 22(2) resply of the Specific Relief
Act, 1963 (47 of 1963) (for short, ‘the Act 1963’)?"
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
5. Per contra, the learned counsel for the respondent/plaintiff
submits that the order passed by the District Munsif Cum Judicial
Magistrate Court, Peraiyur vide impugned fair and decreetal order, dated
22.11.2019 does not call for any interference. It is submitted that the
application itself was an abuse of Court proceedings and therefore, liable
to be dismissed. That apart, it is submitted that the suit is of the year
2009 and the trial was completed in the year 2019 and at the stage when
the case was to be argued, the petitioner (second defendant) in the suit
has filed I.A.No.260 of 2019 only with a view to protract the litigation
and to force the Court not to pass any final judgment and decree in the
suit. The learned counsel for the respondent reiterates that the decision of
the Hon’ble Supreme Court in the impugned order in the case of Ashok
Kumar Kalra Vs Wing Cdr.Surendra Agnihorthi and others is
applicable in four corners.
6. The learned counsel for the respondent has also placed reliance
on the decision of this Court rendered in CRP(MD)Nos.1472 to 1474 of
2018, dated 18.06.2018. A specific reference is made to paragraph 12,
which reads as under:
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
"12. In this regard, it is pertinent to refer the provision of
Order VIII Rule 6A (1) of CPC, which is extracted hereunder:
“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.”
In this case, admittedly counter claim was not filed before
the revision petitioners/defendants has filed written statement or
before the time limit extended for filing written statement. The
revision petitioners/defendant filed application to receive
counter claim only after completion of trial and not before filing
written statement."
7. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
8. The suit has been filed only for a declaration and recovery of
possession of the property. The suit was instituted in the year 2009 as
O.S.No.429 of 2009, which was subsequently re-numbered as O.S.No.
207 of 2013 before the District Munsif Cum Judicial Magistrate Court,
Peraiyur. The petitioner appears to have filed a written statement on
05.03.2010. Nothing precluded the petitioner from filing a counter claim
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
immediately along with the written statement in accordance with Order
VIII of C.P.C., instead the petitioner waited for the trial to get over and
for the case to be listed for arguments.
9. In my view, the order passed by the Trial Court does not call for
any interference as clearly the intention of the petitioner is to protract the
litigation and to delay the judgment to be pronounced in the case
particularly after the trial was over. The decision of the Hon’ble Supreme
Court in the case of Life Insurance Corporation of India Vs Sanjeev
Builders Private Limited and others also does not further case of the
petitioner.
10. In this case, clearly, injustice and prejudice will be caused if
the order is interfered. Therefore, I do not find any reasons to interfere
with the impugned order. Hence, the present Civil Revision Petition
stands dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
05.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
sn
To
1.The District Munsif cum
Judicial Magistrate Court, Peraiyur..
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.328 of 2020
C.SARAVANAN,J.
SN
C.R.P(MD)No.328 of 2020
05.04.2023
https://www.mhc.tn.gov.in/judis
