Telangana High Court
Smt. Puchalapalli Vijitha vs Pitta Hari Babu on 8 February, 2023
Bench: T.Vinod Kumar
HONOURABLE SRI T.VINOD KUMAR
CIVIL REVISION PETITION No.5 of 2023
Between:
#Smt.Puchalapalli Vijitha and another.
......... Petitioner
Versus
$ PittaHari Babu.
....... Respondent
Date of Judgment pronounced on :08-02-2023
HONOURABLE SRI JUSTICE T.VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No
Of the Judgment?
____________________
JUSTICE T.VINOD KUMAR
2
HONOURABLE SRI T.VINOD KUMAR
CIVIL REVISION PETITION No.5 of 2023
%08.02.2023
# Smt.Puchalapalli Vijitha and another.
......... Petitioner
Versus
$ Pitta Hari Babu.
....... Respondent
< GIST:
> HEAD NOTE:
!Counsel for the Petitioner : Sri Ashutosh B. Joshi
^Counsel for the respondent : None appeared
? Cases referred
1.
2017 (3) ALD 68 : 2016 (0) SCJ Online (AP) 328
2.
(1996) 4 SCC 699
3
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Civil Revision Petition No.5 of 2023
ORDER:
1. This Civil Revision Petition under Article 227 of Constitution
of India is preferred against the order passed by the II Additional
Junior Civil Judge-cum-II Additional Metropolitan Magistrate at
Malkajgiri in I.A.No.893 of 2021 in O.S.No.557 of 2020,
dt.25.11.2022.
2. Heard Sri Ashutosh B. Joshi, learned counsel for Revision
Petitioners, and perused the record. Though the name of Sri
B.Srinivas is shown in the cause list as counsel for the Respondent,
he did not appear and a request for adjournment was made on his
behalf after the learned counsel for the Petitioners had concluded
his submissions. The said request for adjournment was declined by
the Court, as notices to Respondent in this civil revision petition
were ordered on 06.01.2023 directing the matter to be listed on
27.012023. On 27.01.2023 when the matter was taken, as there
was no representation on behalf of the Respondent, even though
the name of learned counsel was shown in the cause list on the
said date and the matter was directed to be listed today i.e.,
03.02.2023. Thus, this court proceeded to dispose of the matter.
3. The Petitioners herein are the Defendants in the suit
instituted by the Respondent herein as Plaintiff. The
Respondent/Plaintiff has filed the suit for grant of perpetual
injunction seeking to restrain the Defendants and their agents
from interfering with the peaceful possession and enjoyment of
the residential house i.e., the suit schedule property by the
Plaintiff.
4. The Petitioners herein, on receiving summons, filed their
written statement and counter claim therein seeking for eviction of
the Respondent/ Plaintiff. The Petitioners herein in their counter
claim, in the suit filed by the Respondent/Plaintiff for injunction,
had valued the suit for the relief of eviction and also paid the
appropriate Court fee under the Telangana Court-Fees and Suit
Valuation Act, 1956 (for short, 'the Act').
5. The Respondent/Plaintiff had filed his rejoinder and counter
to the written statement and counter claim filed by the
Petitioners/Defendants seeking eviction of the
Respondent/Plaintiff.
6. The factum of Petitioners/Defendants being the owners of
the scheduled property and the Respondent/Plaintiff is a tenant of
the Petitioners/Defendants, is not in dispute.
7. The Petitioners/Defendants contend that on filing their
written statement and counter claim, they had filed I.A.No.893 of
2021 under Order 15-A r/w Section 151 CPC before the trial Court
to direct the Respondent/Plaintiff to deposit arrears of rent claimed
in the counter claim and also to direct the Respondent/Plaintiff to
continue to pay the monthly rents till the disposal of the main suit.
8. The Respondent/Plaintiff filed his counter to the said
petition. The contention of the Respondent/Plaintiff is mainly that,
in a suit for perpetual injunction a petition under Order 15-A r/w
Section 151 of CPC is not maintainable.
9. The Court below, on consideration of the petition, counter
and upon hearing the arguments of the counsel appearing for the
parties, had framed the following point for determination of the
Court.
"Whether the Petitioners/Defendants are entitled to direct the
Respondent/Plaintiff to deposit the arrears simultaneously calling upon
the Respondent to continue to pay the monthly rent till the disposal of
the main suit as prayed for?"
10. The trial Court by referring to the provisions of Order 15-A of
CPC concluded that in a suit filed by the Respondent/tenant for
injunction simplicitor, the Petitioners/landlords cannot file a
petition seeking arrears of rent as rightly contended by the
Respondent. The trial Court also held that if the
Petitioners/Defendants have a grievance of the
Respondent/Plaintiff not paying rents, the remedy available is
elsewhere. The trial Court placed reliance on the judgment
rendered by the erstwhile combined High Court of Andhra Pradesh
in the case of M.B. Chander and Ors. vs. Balakrishna Rao
Charitable Trust1, wherein the Court had stated that in order to
invoke Order 15-A of CPC, the conditions specified therein need to
be fulfilled. The conditions specified in para No.16 of the above
judgment are as under:
"1. A suit must be for recovery of possession of property i.e., for
eviction;
2. there must be a prayer for recovery of rent or compensation for the
use and occupation;
3. the defendant/petitioner must plead no areas or arrears to be paid
to landlord/plaintiff, which needs examination by court to decide what
is admitted arrears of rent."
2017 (3) ALD 68 : 2016 (0) SCJ Online (AP) 328
The trial Court, by applying the above conditions to the present
suit, concluded that since the suit filed by the Respondent/Plaintiff
is for perpetual injunction and not for eviction, the petition filed
under Order 15-A (1) of CPC is not maintainable and accordingly,
dismissed the petition.
11. However, a perusal of the impugned order would reveal that,
the trial Court had not considered the fact of the
Petitioners/Defendants filing a counter claim along with their
written statement seeking eviction and recovery of arrears of rent
against the Respondent/Plaintiff. The Petitioners/Defendants had
also paid requisite Court fee thereon under the Act by valuing the
counter claim as a suit for eviction. Moreover, the above said fact
of the Petitioners/Defendants filing counter claim by paying
appropriate Court fee along with their written statement is not in
dispute.
12. The finding of the Court below that in a suit filed for
perpetual injunction, petition under Order 15-A of CPC is not
maintainable is factually incorrect and cannot be sustained, as in
the present case the Petitioners/Defendants had also filed their
counter-claim. A counter claim filed under Order 8 Rule 6 CPC has
to be treated as a cross-suit for all practical purposes and the
Court has to adjudicate on both the main relief as well as the relief
sought for in the counter-claim.
13. In the case of Jag Mohan Chawla v. Dera Radha Swami
Satsang2, the Supreme Court had held as under:
"The question, therefore is: whether in a suit for injunction, counter-
claim for injunction in respect of the same or a different property is
maintainable? Whether counter-claim can be made on different cause
of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of
Order 8 limited the remedy to set off or counter-claim laid in a written
statement only in a money suit. By CPC Amendment Act, 1976, Rules
6A to 6G were brought on statute. Rule 6A(1) provides that 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 damage or not. A limitation put in
entertaining the counter-claim is as provided in the proviso to Sub-rule
(1). namely, the counter-claim shall not exceed the pecuniary limits of
the jurisdiction of the Court. Sub-rule (2) amplifies that 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. The
plaintiff shall be given liberty to file a written statement to
answer the counter-claim of the defendant within such period
as may be fixed by the Court. The counter-claim is directed to
be treated, by operation of Sub-rule (4) thereof, as a plaint
governed by the rules of the pleadings of the plaint. Even before
(1996) 4 SCC 699
1976 Act was brought on statute this Court in Laxmidas Dahyabhai
Kabarwala v. Nanabhai Chunilal Kabarwala [1964]2SCR567, had come
to consider the case of suit and cross suit by way of counter-claim.
Therein, suit was filed for enforcement of an agreement to the effect
that partnership between the parties had been dissolved and the
partners had arrived at a specific amount to be paid to the appellant in
full satisfaction of the share of one of the partners in the partnership,
and there by decree for settlement of accounts was sought. Therein the
legal representatives of the deceased partner contended in the written
statement, not only denying the settlement of accounts but also made a
counter-claim in the written statement for the rendition of accounts
against the appellant and paid the court free as plaint. They also sought
a prayer to treat the counter-claim as a cross suit. The trial Court
dismissed the suit and the counter-claim. On appeal, the learned Single
Judge accepted the counter-claim on a plaint in a cross suit and
remitted the suit for trial in accordance with law. On appeal, per
majority this Court had accepted the respondents' plea in the
written statement to be a counter-claim for settlement of their
claim and defence in written statement as a cross suit. The
counter-claim could be treated as a cross suit and it could be
decided in the same suit without relegating the parties to a
fresh suit. It is true that in money suits, decree must be
conformable to Order 20, Rule 18, CPC but the object of the
amendments introduced by Rules 6A to 6G are conferment of a
statutory right to the defendant to set up a counter-claim
independent of the claim on the basis of which the plaintiff laid
the suit, on his own cause of action. In Sub-rule (1) of Rule 6A,
the language is so couched with the words of wide width as to
enable the parties to bring his own independent cause of
action in respect of any claim that would be the subject matter
of an independent suit. Thereby, it is no longer confined to
money claim or to cause of action of the same nature as
original action of the plaintiff. It need not relate to or be
connected with the original cause of action or matter pleaded
by the plaintiff. The words "any right or claim in respect of a
cause of action accruing with the defendant" - would show
that the cause of action from which the counter-claim arises
need not necessarily arise from or have any nexus with the
cause of action of the plaintiff that occasioned to lay the suit.
The only limitation is that the cause of action should arise before the
time fixed for filing the written statement expires. The defendant may
set up a cause of action which has accrued to him even after the
institution of the suit. The counter-claim expressly is treated as a
cross suit with all the indicia of pleadings as a plaint including
the duty to aver his cause of action and also payment of the
requisite court fee thereon. Instead of relegating the
defendant to an independent suit, to avert multiplicity of the
proceeding and needless protraction, the legislature intended
to try both the suit and the counter-claim in the same suit as
suit and cross suit and have them disposed of in the same trial.
In other words, a defendant can claim any right by way of a
counter-claim in respect of any cause of action that has
accrued to him even though it is independent of the cause of
action averred by the plaintiff and have the same cause of
action adjudicated without relegating the defendant to file a
separate suit..."
14. Thus, by the position of law enunciated as above, the
counter claim filed by the Petitioners/Defendants would have to be
treated as an independent suit for eviction. Once it is treated so,
the Petitioners/Defendants would be entitled to file a petition
under Order 15-A CPC for deposit of arrears of rent. Such a
petition is maintainable. However, the court below has not
examined the issue in the above perspective. Further, the court
below is required to apply the test to grant relief under Order 15-A
CPC as held by this Court in M.B. Chander's Case (Supra 1) to
the counter claim of the Petitioners/Defendants for recovery of
arrears and eviction and not to the suit seeking perpetual
injunction filed by the Respondent/Plaintiff.
15. Hence, this Court is of the view that the court below had
erred in dismissing the petition filed by the Petitioners/Defendants
on the ground that a petition for arrears of rent cannot be filed in
suit for perpetual injunction. Thus, the impugned order passed by
the trial court being erroneous cannot be sustained.
16. Accordingly, the Civil Revision Petition is allowed; the order
dt.25.11.2022 in I.A.No.893 of 2021 in O.S.No.457 of 2020 passed
by the Court of II Additional Junior Civil Judge-cum-II Additional
Metropolitan Magistrate at Malkajgiri is hereby set aside; and the
matter is remitted back to the trial court for passing orders afresh
in the petition filed by the Petitioners/Defendants under Order 15
A r/w Section 151 CPC by taking into consideration the counter
claim filed by the Petitioners/Defendants as a cross suit for
eviction in accordance with law. However, having regard to the
facts, the Court below is directed to dispose of the above IA within
a period of two weeks from the date of receipt of a copy of this
order. Parties are at liberty to file a copy of this order before the
trial court for the aforesaid purpose.
17. Consequently, pending miscellaneous petitions, if any, shall
stand closed. No order as to costs.
__________________
T. VINOD KUMAR, J
Date:08.02.2023
Note: L.R. copy to be marked.
B/o
GJ
