Madras High Court
Seventh Vision India Private ... vs Miot Hospital Private Limited on 20 April, 2023
OSA No.60 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2023
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Original Side Appeal No.60 of 2022 &
C.M.P.Nos.4696 & 7527 of 2022
---
1.Seventh Vision India Private Limited,
Running a News Channel in the name and style of
LOTUS NEWS TV,
Represented by its Director,
Mr.G.K.S.Selvakumar,
Having Registered Office address at:
No.658-664, Raja Lakshmi Plaza,
100 Ft. Road, Gandhipuram,
Coimbatore-641 012.
2.Mr.G.K.S.Selvakumar,
Chairman M/s.Seventh Vision Indian Private Limited,
Having Registered Office address at:
No.658-664, Raja Lakshmi Plaza,
100 Ft. Road, Gandhipuram,
Coimbatore-641 012.
3.N.Saravnan,
CEO, Lotus News TV,
Having Registered Office address at:
No.658-664, Raja Lakshmi Plaza,
100 Ft. Road, Gandhipuram,
Coimbatore-641 012. .. Appellants
Versus
1.MIOT Hospital Private Limited,
Represented by the Vice President (Liaison),
Mr.R.Hariharan,
S/o.Mr.Ramanathan,
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OSA No.60 of 2022
Having been authorized vide
Board Resolution dated 25.07.2020,
Having Registered Office at:
4/112, Mount Poonamallee Road,
Manapakkam, Chennai - 600 089.
2.Mr.D.Pathmanaban,
S/o.Mr.Dhiravidamani,
Residing at:
No.17, Muthumari Amman Koil Street,
MGR Nagar, Kalignar Karunandhi Nagar,
Chennai - 600 078. .. Respondents
Original Side Appeal filed under Order XXXVI Rule 1 of the Original Side
Rules read with Clause 15 of Letters Patent against the Fair and Final Order dated
07.02.2022 passed by the learned Judge in Application No.234 of 2022 in
C.S.No.222 of 2020.
For Appellants : Mr.V.Sivakumar
For Respondents : Mr. B.Aravind Srivatsa
for Mr.S.Manuraj for R-1
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J)
The challenge made in this appeal is to the order dated 07.02.2022 passed
by the learned Judge in Application No.234 of 2022 in C.S.No.222 of 2020.
2.For the sake of convenience, the parties herein are referred to as per their
rank in the civil suit. The appellants 1 to 3 herein are the defendants 1 to 3; the
first respondent is the plaintiff; and the second respondent is the fourth defendant
in the suit.
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OSA No.60 of 2022
The facts in brief:-
3.1. The fourth defendant gave an interview to the first defendant's News
Channel viz., LOTUS NEWS TV, stating that he had tested negative for COVID-19 at
Kilpauk Medical College and Hospital on 31.05.2020. However, when he visited the
plaintiff hospital for back pain on 01.06.2020, despite revealing the earlier negative
test result, he was compelled to undergo another COVID-19 test, which came back
positive; feeling dissatisfied, he left the plaintiff hospital on the same day; and on
02.06.2020, he took another COVID-19 test at Rajiv Gandhi Government Hospital,
Chennai and the test result was again negative. The said interview was posted at
facebook page of the first defendant TV News Channel on 09.06.2020 at
15.18 hours. Aggrieved by the same, the plaintiff instituted a suit viz.,
CS.No.222 of 2020 claiming a sum of Rs.1,00,10,000/- towards damage for loss of
reputation and mental agony and mandatory as well as permanent injunction.
3.2. Resisting the suit, the defendants 1 to 3 filed a written statement
along with counterclaim, claiming a compensation of Rs.25,00,000/- for filing
vexatious suit by the plaintiff.
3.3. Thereafter, issues were framed, in which, the counterclaim was also
added as one of the issues, and trial has commenced, during which, the plaintiff
was examined as PW1 and their side evidence was closed on 23.11.2021. Proof
affidavit was also filed by the defendants on 14.12.2021 and the case stood
adjourned for marking of documents on the defendants' side. At this stage, the
plaintiff filed an application viz., A.No.234 of 2022 seeking to condone the delay of
444 days in filing the written statement to the counterclaim filed by the defendants,
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OSA No.60 of 2022
without filing any application to reopen the evidence and without any application to
grant leave for the same.
3.4. The learned Judge, by order dated 07.02.2022, allowed the aforesaid
application, subject to payment of costs of Rs.50,000/- on or before 06.03.2022.
Thereafter, vide order dated 07.03.2022, the written statement to the counterclaim
was taken on file and the recording of evidence on both sides was directed to be
completed on 25.03.2022. Aggrieved by the order of the learned Judge dated
07.02.2022, the defendants 1 to 3 are before this court with the present appeal.
4.1. The learned counsel for the appellants/defendants submitted that on
02.10.2020, the appellants filed their written statement along with counterclaim
under Order VIII Rules 1 and 2 and 6(A) of the CPC, r/w Order V Rules 1 and 6 of
the Madras High Court Original Side Rules, claiming a sum of Rs.25,00,000/- as
compensation against the first respondent/plaintiff after paying necessary court
fees and upon serving a copy of the same and hence, the plaintiff is very well
aware about the counterclaim filed by the defendants. Subsequently, the written
statement and the counterclaim filed, were returned for want of certain compliance
and after rectifying the defects, the same were re-presented on 27.01.2021, after
serving a copy of the same on the plaintiff and therefore, the plaintiff has got the
knowledge about the filing of counterclaim by the defendants. Thereafter, the case
stood posted for filing written statement to the counterclaim by the plaintiff. But,
the plaintiff did not choose to file any written statement / replication statement to
the counterclaim at the stage of filing the pleadings. Thus, according to the learned
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OSA No.60 of 2022
counsel, on three occasions, the plaintiff was granted opportunity to file its written
statement in answer to the counterclaim filed by the defendants, however, after
framing of the issues and upon completion of the plaintiff's side evidence and filing
of the proof affidavit on the side of the defendants, they have come forward with
their written statement to the counterclaim along with the application to condone
the delay of 444 days in filing the same. Without considering the stage at which the
plaintiff has intended to file its written statement to the counterclaim, the learned
Judge erred in allowing the said condone delay application on payment of costs, by
the order impugned herein.
4.2. Elaborating further, the learned counsel for the appellants /
defendants submitted that after commencement of evidence, permitting the
plaintiff to file pleadings, contrary to the Civil Procedure Code or the Civil Rules of
Practice or under the Madras High Court Original Side Rules, would cause serious
prejudice to the defendants. That apart, without filing any petition to reopen the
evidence or to seek leave of the court, the plaintiff has preferred the written
statement in answer to the counterclaim, along with the delay application, which
cannot be maintainable. Therefore, this appeal will have to be allowed by setting
aside the order of the learned Judge dated 07.02.2022 passed in A.No.234 of 2022.
5. Per contra, the learned counsel for the first respondent / plaintiff
submitted that the delay in filing the written statement to the counterclaim had
occurred on account of the second wave of the COVID-19 Pandemic, consequent
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OSA No.60 of 2022
lockdown restrictions and drastic increase in the cases at the plaintiff's hospital, as
a result of which, proper instructions have not been given within the time for the
preparation of written statement. The learned counsel further submitted that the
plaintiff has not been provided sufficient opportunity to file written statement to the
counterclaim filed by the defendants 1 to 3, as evident from the order dated
24.03.2021, whereby, the learned Judge after receipt of the written statement
along with counterclaim filed by the defendants 1 to 3, has posted the suit for
framing issues on 21.04.2021. It is also submitted that the plaintiff as PW1 in his
cross examination on 26.10.2021, has specifically denied that the appellants /
defendants 1 to 3 are not entitled for counterclaim; that, counterclaim of the
defendants has already been framed as one of the issues in the suit; and that, only
the chief-examination and cross-examination of the plaintiff / PW1 have been done
and the examination of the defendants' side witness has not yet been commenced.
Therefore, no prejudice would be caused to the defendants 1 to 3, if the written
statement filed by the plaintiff to the counterclaim of the defendants is taken on
record. Thus, according to the learned counsel, the learned Judge considering all
these aspects, has rightly allowed the application seeking to condone the delay in
filing the written statement to counterclaim and the same does not call for any
interference at the hands of this court.
6. This court has considered the rival submissions and also perused the
documents enclosed in the typed set of papers.
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OSA No.60 of 2022
7. The only issue which needs to be determined herein is, whether the
application praying to condone the delay in filing the written statement by the
plaintiff to the counterclaim of the defendants, after the framing of issues and
commencement of trial, can be ordered.
8. It is the settled legal position that a counterclaim shall be treated as a
plaint and is governed by all the rules that are applicable to plaints. In other words,
a counter-claim has to be treated as if it is a suit or as a cross suit; and the object is
to enable the court to decide the issue between the parties finally in the same suit,
instead of driving one party to file a separate suit, which may proliferate the
litigation. The provisions of Order VIII Rule 6-A of the Civil Procedure Code deal
with counter-claim by the defendant and are usefully quoted below:
"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)
(4) The counter-claim shall be treated as a plaint and governed by the rules
applicable to plaints."
A reading of the above provisions make it clear that the defendant in addition to
his/her right to pleading set off, can also file a counterclaim against the plaintiff
regarding any right or claim in respect of a cause of action that accrues to the
defendant against the plaintiff, either before or after filing of the suit, but before
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the defendant has delivered his defence or before the time prescribed for
delivering his defence has expired, whether such counterclaim is in the nature of a
claim for damages or not. It also makes it clear that the plaintiff shall be at liberty
to file written statement in answer to the counterclaim and the time limit for the
same is within the period as may be fixed by the court.
9. In the present case, the plaintiff has preferred its written statement in
answer to the counterclaim of the appellants / defendants belatedly, i.e, after
framing of the issues and commencement of trial, along with the application to
condone the delay in filing the same. The reasons adduced for the delay
occasioned were that due to covid-19 situation, consequent lockdown restrictions
and drastic increase in the cases at the plaintiff's hospital, they were unable to give
necessary instructions for preparation of written statement to the counterclaim
within the time and hence, the delay occasioned is neither wilful nor wanton, but
only due to the said exceptional circumstances. It is also stated that during the
cross examination, on 26.10.2021, the plaintiff as PW1 specifically denied that the
appellants are entitled to counterclaim. On the other hand, the appellants raised
objection for condoning the delay by stating that though the plaintiff has got the
knowledge about the counterclaim filed by the defendants, they preferred their
written statement to the same only after framing of the issues and commencement
of trial, that too, with an inordinate delay of 444 days; and therefore, the order of
the learned Judge in allowing the same, would cause serious prejudice to the
appellants / defendants.
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OSA No.60 of 2022
10. Before proceeding further, this court deems it appropriate to notice the
relevant dates and events that had taken place from the date of institution of the
suit to till date, as evident from the records and the same are detailed below:
18.08.2020 - Plaint was filed by the first respondent /plaintiff seeking
damage for a sum of Rs.1,00,10,000/- against the
appellants and second respondent
02.10.2020 - Written statement along with counterclaim, was filed by
the appellants / Defendants 1 to 3
27.01.2021 - Written statement along with counterclaim was
re-presented by the appellants /defendants 1 to 3
24.03.2021 - Written statement along with counterclaim was taken on
record and that, the fourth defendant was set exparte
21.04.2021 - Draft issues were filed by the first respondent / plaintiff
28.04.2021 - Issues were framed and the case stood adjourned to
04.06.2021 for recording evidence
21.07.2021 - List of witness was filed by the plaintiff
13.08.2021 Proof affidavit was filed by the plaintiff
28.09.2021
26.10.2021 - Plaintiff as PW1 was examined in chief and cross
& 23.11.2021
23.11.2021 - Plaintiff side evidence was closed
14.12.2021 - Proof affidavit was filed by the appellants/defendants
05.01.2022 - A.No.234 of 2022 seeking to condone the delay in filing
the written statement to the counterclaim was filed by
the plaintiff
07.02.2022 - The delay application was allowed on payment
of costs of Rs.50,000/- by the plaintiff
03.03.2022 - Plaintiff deposited the costs into court
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OSA No.60 of 2022
07.03.2022 - The learned Judge has taken the written statement to
the counterclaim on record and inter alia directed the
learned Master to complete the evidence on 25.03.2022
17.03.2022 - Aggrieved, this appeal by the appellants/Defendants
1 to 3 against the order dated 07.02.2022
It is thus apparent from the above particulars that the proceedings of the case
have been conducted in regular intervals and the delay in filing the written
statement in answer to the counterclaim has not affected the speedy trial.
11. Admittedly, the plaintiff is a multi-speciality hospital providing health
care services to the people in the City of Chennai. Undoubtedly, during covid-19
pandemic, the hospitals, doctors, staff nurses and sanitary workers were playing
vital role in taking care of the affected people and controling the situation; that, the
Government announced nationwide lockdown and imposed certain restrictions on
the people; and that, the Hon'ble Supreme Court in SMW(C) NO.3 of 2020, took
suo motu cognizance of the difficulties that might be faced by the litigants in filing
petitions/ applications /suits / appeals/all other proceedings within the period of
limitation prescribed under the general law of limitation or under any special laws
(both Central and /or State) and granted extension of period of limitation in all
proceedings before the Courts/ Tribunals with effect from 15.03.2020, which was
subsequently, extended till 28.02.2022, by two orders dated 23.09.2021 and
10.01.2022. In the case at hand, the plaint was filed on 18.08.2020; the written
statement along with counterclaim was filed by the defendants on 02.10.2020 and
the same was re-presented on 27.01.2021; and all other proceedings were taken
place, during the period of covid-19 pandemic situation. Incidentally, the cause of
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action arisen for instituting the plaint by the plaintiff is also relating to test result
taken for covid-19 by the second respondent / fourth respondent and consequential
interview given in this regard. In view of the same, the reasons adduced by the
plaintiff for the delay in filing the written statement to the counterclaim are quite
reasonable and found to be satisfactory.
12. Pertinently, it is to be pointed out at this juncture that subsequent to the
order dated 07.02.2022, which is impugned herein, the learned Judge vide order
dated 07.03.2022, has taken the written statement in answer to the counterclaim
on file and directed the plaintiff / PW1 for chief examination on 24.03.2022 and
further directed the defendants for cross examination on 25.03.2022. Thus, the
appellants / defendants have been provided opportunity to examine the plaintiff
side witness; and that, the said order dated 07.03.2022 has not been challenged by
them.
13. Therefore, as per the decided cases of various courts, this court is of the
opinion that the purpose of procedural law is to ensure the legal process as more
effective in the course of delivering substantial justice and hence, the order passed
by the learned Judge in allowing the delay application under the exceptional
circumstances, does not require any interference. Accordingly, this Original Side
Appeal stands dismissed. No costs. Consequently, connected miscellaneous
petitions are closed.
[R.M.D., J.] [M.S.Q., J.]
20.04.2023
Speaking Order /Non-speaking order
Index : Yes / No
Internet : Yes
rns
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OSA No.60 of 2022
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rns
Copy to: The Sub Assistant Registrar, (Original Side),
Madras High Court, Chennai.
Original Side Appeal No.60 of 2022
& C.M.P.Nos.4696 & 7527 of 2022
20.04.2023
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