Narsing Prasad Agarwal And 2 ... vs Babulal Agarwal Died And 10 Others
2021 Latest Caselaw 1916 Tel

           THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

            CIVIL REVISION PETITION No.1656 of 2018

ORDER:

This revision is filed challenging the order dated 06.10.2017 in

I.A.No.5887 of 2016 in O.S.No.602 of 2008 passed by the Chief Judge,

City Civil Court, Hyderabad.

2. The petitioners are defendants No.1, 2, 9 and 10.

The respondents No.1, 2 and 3 are the plaintiffs in the suit.

The respondents No.4 to 9 are the other defendants.

3. The petitioners filed an application in I.A.No.5887 of 2016 under

Order VIII Rule 6 read with Section 15 of the Code of Civil Procedure,

to permit the defendant No.1 to prefer a counter claim in the suit by

seeking recovery of possession of Item No.4 of the suit schedule

property. The said application came to be dismissed under the

impugned order dated 06.10.2017.

4. It is stated by the petitioners that the respondents No.1 to 3

filed the aforesaid suit for partition and separate possession of the suit

schedule properties being Item Nos.1 to 5. Item No.4 of the suit

schedule property viz. house bearing MCH.No.8-2-293/k/215,

Plot No.315 admeasuring 228 square yards is the exclusive property of

the petitioner No.1/defendant No.1, as he purchased the same by

virtue of registered sale deed bearing document No.42 of 2007 dated

22.12.2006. The petitioner No.1 has given portion of the said property

viz. 576 sq. feet in the nature of two mulgies on lease to the

respondent No.2 in the year 1991 for the purpose of his business

under the name and style of 'Neelam Traders'. The respondent No.2

also paid monthly rents to the respondent No.1 but the respondent

No.2 in collusion with the other respondents filed the present suit

making false claim alleging that the said property is a joint family

property and for making illegal gains. Subsequently, the respondent

No.2 inducted the respondent No.3 in the said premises. After demise

of their father, the respondents No.2 and 3 agreed to settle the matter

and hand over the vacant possession of the property to the petitioner

No.1. However, they refused to comply with the request of the

petitioners.

5. In order to protect his own interest, the petitioner No.1 was

compelled to file a counter claim seeking recovery of possession of the

portion of item No.4 of the plaint schedule property (in view of denial

of relationship of landlord and tenant between the parties). It is

averred in the application by the petitioners that the counter claim is

not in the nature of bringing in any new cause of action and it would

not change the nature of the suit, instead it would avoid multiplicity of

proceedings. The matter in the suit as well as the counter claim would

be one and the same and the judgment that would be passed in the

suit will have direct bearing on the result of the counter claim.

No prejudice would be caused to the respondents if the proposed

counter claim is permitted to be filed.

6. The respondent No.3, in his counter, opposing the application

contended that a belated application is filed under Order VIII Rule 6(A)

CPC. It is barred by limitation and liable to be dismissed at the

threshold. The application is filed five years after filing of the additional

written statement. Item No.4 of the suit schedule property is not the

exclusive property of the defendant No.1, as alleged by the petitioners,

but it is the joint family property purchased by the plaintiff No.1 during

his lifetime in the name of the family members out of the joint family

funds. The allegations that the petitioner No.1 let out the property to

the respondent No.1 in 1991 is incorrect. The business run in the

name and style of 'Neelam Traders' is joint family business and

the said property is a joint family property. The petitioner No.1 played

fraud on the respondents and the Court by creating fraudulent

mortgage with the bank during the pendency of the suit, as admitted

by him in the cross-examination. The defendant No.1 filed his written

statement in December 2008 and additional written statement on

28.07.2011 and evidence of P.Ws.1 to 3 and D.Ws.1 to 3 was

completed. The suit was posted for further evidence of the defendants

and thus, it is barred by limitation.

7. The Court below dismissed the application on the ground that

the petitioners came up with the counter claim on 01.11.2016 and

have not stated any reasons for the delay in filing the same.

8. Mrs. Manjari Ganu, learned counsel for the petitioners, stated as

there was no interim order in this revision petitioner, the suit was

disposed of and the appeal, filed by the petitioners, challenging the

said judgment is pending. However, the learned counsel submitted

that the cause in the CRP still survives and if CRP is allowed, the

counter claim has to be registered as a separate suit. Moreover, the

petitioners would be put to prejudice if the petitioners are to file a

separate suit now and the same would be barred by limited. Learned

counsel further submitted that necessary observations may be made

to protect the interest of the petitioners in the event this Court comes

to the conclusion that the cause in the CRP does not survive.

9. Learned counsel for the respondents states that the revision

petition has rendered infructuous since the suit is disposed of.

10. Heard both sides.

11. Having considered the submissions of the learned counsel,

this Court is of the opinion that the cause in the CRP does not survive

any more, as, admittedly, the suit in O.S.No602 of 2008 was disposed

of. Needless to state that the petitioners are entitled to seek exclusion

of time consumed for pursuing the application in I.A.No.5887 of 2016

before the lower Court and also in pursuing the instant revision

petition before this Court under Section 14 of the Limitation Act for the

purpose of computation of period of limitation in the event the

petitioners choose to institute a separate suit for recovery of

possession.

With the above observations, the civil revision petition is

disposed of. Pending miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J July 2nd, 2021 DSK