Telangana High Court
Yelaboina Kumar, vs Guvva Jai Hind, on 15 March, 2024
HIGH COURT FOR THE STATE OF TELANGANA
CIVIL REVISION PETITION No.129 OF 2024
Yelaboina Kumar, S/o Komuraiah,
Aged 49 years, Occ: Agriculture,
R/o Shivaji Nagar, Raghunathapally Mandal
Jangaon District and another
....Petitioner
VERSUS
Guvva Jai Hind, S/o Venkataiah,
Age:53 yrs, Occ: Advocate,
R/o 8-104/56, Raghunathapally(V) & (M),
Jangaon District and others.
... Respondents
DATE OF JUDGMENT PRONOUNCED: 15.03.2024
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
1. Whether Reporters of Local Yes/No
newspapers may be allowed to see the
Judgments?
2. Whether the copies of judgment may Yes/No
be marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
_____________________
J. SREENIVAS RAO, J
2
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ CIVIL REVISION PETITION No.129 OF 2024
% Dated 15.03.2024
# Yelaboina Kumar, S/o Komuraiah,
Aged 49 years, Occ: Agriculture,
R/o Shivaji Nagar, Raghunathapally Mandal
Jangaon District and another
....Petitioner
VERSUS
$ Guvva Jai Hind, S/o Venkataiah,
Age:53 yrs, Occ: Advocate,
R/o 8-104/56, Raghunathapally(V) & (M),
Jangaon District and others.
... Respondents
! Counsel for Petitioner : Sri C.Shanmukh Rao
^ Counsel for Respondents : Sri M. Ratan Singh,
< GIST:
> HEAD NOTE:
? CITATIONS:
1. (2020) 2 SCC 394
2. (2021) 20 SCC 210
3. 2022 SCC OnLine SC 1026
3
HON'BLE SRI JUSTICE J. SREENIVAS RAO
CIVIL REVISION PETITION No.129 of 2024
ORDER:
This Civil Revision Petition is filed invoking the
provisions of Article 227 of Constitution of India.
Aggrieved by the orders dated 04.10.2023 passed by
Principle Junior Civil Judge, Jangaon in I.A.No.783 of
2022 in O.S.No.515 of 2021, granting leave to defendant
No.1 for filing counter claim in the suit.
2. The revision petitioners are plaintiffs and respondent
No.1 is the defendant No.1 in the Suit O.S.No.515 of 2021.
For the sake of convenience the parties herein are referred
to as they arrayed in the suit before the Court below.
3. Brief Facts of the case:
3.1 Plaintiff filed suit in O.S.No.515 of 2021 on the file of
Principle Junior Civil Judge at Jangaon seeking perpetual
injunction restraining the defendants from interfering with
the suit schedule property i.e., an extent of Acs.7.36
guntas in Survey No.195/2, 196/2, 195/1/2 and in
Survey No.196/1/2, situated at Kanchanapally Revenue
Village, Raghunathpally Mandal, Jangaon District.
Plaintiffs in the said suit stated that they are the owners
and possessors of Scheduled property and the same was
purchased from defendant No.2 under Sada Sale deed
dated 02.04.1992. Pursuant to the same, their names
were mutated in the revenue records and pattadar pass
books and title deeds were issued in their favour. Along
with the said suit plaintiffs filed I.A.No.677 of 2021 under
Order XXXIX Rule 1 and 2 R/w Section 151 of Civil
Procedure Code, 1908('CPC' for brevity) seeking temporary
injunction. Initially the Court below granted ad-interim
injunction. In the said application defendant Nos.2 and 3
were remained ex-parte. The Court below after
considering the contentions of plaintiffs and defendant
No.1, made the interim injunction order granted earlier
absolute and allowed the application I.A.No.677 of 2021
by its order dated 23.12.2024.
3.2. While things stood thus, defendant No.1 filed
application I.A.No.783 of 2022 invoking the provisions of
Order VIII Rule 9 R/w Section 151 of CPC seeking leave
for filing counter claim. In the said application defendant
No.1 stated that under the guise of interim injunction
order the plaintiffs are interfering with his property to an
extent of Acs.3.20 guntas in Survey No.197/1/ఊ and the
said land is nothing to do with the Schedule property
claimed by the plaintiffs. He further stated the property
claimed in the counter claim is the Government Assigned
land for which he had been granted assignment patta as
he is landless poor person and since then he is in
possession and enjoyment of the said property and
Revenue authorities issued pattadar passbook and title
deed in his name. When the plaintiffs are trying to
interfere with the said property, he lodged a complaint
before SHO, Ragunathpally and the same was registered.
The Court below after considering the contentions of
respective parties and also considering the judgment of
Hon'ble Apex Court in Ashok Kumar Kalra Vs. Wing
CDR.Surendra Agnihotri and others 1 allowed the
I.A.No.783 of 2022 by its order dated 04.10.2023.
Aggrieved by the said order, plaintiffs filed the present
Civil Revision Petition.
4. Heard Sri C.Shanmukh Rao, learned counsel for
Revision petitioners/plaintiffs and Sri M. Ratan Singh,
(2020) 2 SCC 394
learned counsel for respondent No.1/defendant No.1.
Learned counsel for the petitioners submits that
respondent Nos.2 and 3 are not necessary parties in this
revision petition.
5. Learned counsel for the petitioners submits that
application filed by the defendant No.1 seeking leave to file
counter claim is not maintainable under law on the
ground that the defendant No.1 filed written statement on
10.11.2021 and after expiry of more than six months filed
counter claim and defendant No.1 ought to have filed
counter claim along with the written statement, especially
defendant No.1 has not mentioned the allegations made in
the counter claim in the written statement and in the
absence of any pleading in the written statement
defendant No.1 is not entitled to file counter claim. He
further contended that the interim injunction order dated
23.12.2021 granted by the Court below in I.A.No.677 of
2021 has become final and defendant No.1 has not
questioned the said order and the same is binding upon
him. The Court below without considering the above
aspects allowed the application. He further contended that
the Court below has not properly appreciated the principle
laid down in Ashok Kumar Supra. He also contended
that there is no cause of action for filing counter claim
and the defendant No.1 has to file independent suit. In
support of his contention he relied upon the judgment of
Hon'ble Apex Court in Nitaben Dinesh Patel Vs. Dinesh
Dayabhai Patel 2 and Satyender and others Vs. Saroj
and others 3.
6. Per contra, learned counsel appearing on behalf of
respondent No.1 contended that respondent No.1 is the
absolute owner and possessor of land to an extent of
Acs.3.20 guntas in Survey No.197/1/ఊ and the same
was assigned in his favour by the Government and the
suit scheduled property claimed by the plaintiffs to an
extent of Acs.3.20 gunts in Survey No.195 and 196 is
nothing to do with the property of defendant No.1 and
under the guise of interim injunction order dated
23.12.2021, the plaintiffs are interfering with the property
of defendant No.1.
6.1 He further contended that the Court below while
granting temporary injunction specifically held that the
(2021) 20 SCC 210
2022 SCC OnLine SC 1026
temporary injunction is operating in respect of the
property claimed by the plaintiffs to protect their property
and further held that it does not give any sanction for the
plaintiffs to encroach upon the land of the others. In spite
of specific observation made by the Court below, the
plaintiffs are interfering with the property of defendant
No.1. In those circumstances, defendant No.1 had rightly
filed counter claim invoking the provisions of Order VIII
Rule 6-A of C.P.C to protect his property seeking perpetual
injunction restraining the plaintiffs from interfering with
his property i.e., 3.20 guntas covered by Survey
No.197/1/ఊ and the Court below after considering the
contentions of the respective parties and provisions of
Order VIII Rule 6-A of C.P.C and also by duly considering
the principle laid down by the Hon'ble Apex Court in
Ashok Kumar Supra rightly allowed the I.A. He also
contented that as per the provisions of Order VIII Rule 9 of
CPC there is no time limit fixed for filing counter claim.
7. Having considered the rival submissions made by
respective parties and after perusal of material available
on record it reveals that plaintiffs filed suit for perpetual
injunction restraining the defendants from interfering with
the plaint scheduled property to an extent of Acs.7.36 in
Survey No.195/2, 195/1/2, 196/2 and 196/1/2 and they
are claiming the rights over the said property basing on
the ordinary sale deed dated 02.04.1992 said to have been
executed by defendant No.2 and also basing on the
revenue entries and pattadar passbooks and title deeds.
Whereas defendant No.1 is claiming rights over the
property to an extent of Acs.3.20 guntas in Survey
No.197/1/ఊ basing on the assignment patta granted by
the Government and also basing on the revenue entries
and pattadar passbooks and title deeds.
8. It appears from the records that the Court below
while allowing the I.A.No.677 of 2021 on 23.12.2021
granted ad-interim injunction wherein specifically
observed that the relief granted in favour of the plaintiffs
protects their property from illegal interference and it does
not give any sanction for them to encroach upon the land
of others and the said order is continuing and binding
upon the parties. The specific claim of defendant No.1 is
that under the guise of above said temporary injunction
order, the plaintiffs are interfering with his property and
to protect his property he is entitled to seek the relief of
perpetual injunction sought in the counter claim instead
of filing independent suit to avoid multiplicity of
proceedings.
9. It is very much relevant to mention here that:
(i) whether the property claimed by the defendant No.1
in the counter claim and the property claimed by the
plaintiffs in the suit are one and same or different, (ii)
Whether the identity of the property is in dispute or not
that has to be adjudicated during the course of trial.
Similarly, defendant No.1 in the absence of counter claim
also he is entitled to file independent suit to protect his
property i.e., scheduled property which was mentioned in
the counter claim. However, it is settled principle of law
that to avoid multiplicity of proceedings and to save the
valuable time of the Court as well as the parties, the
defendants are entitled to file counter claims as per the
provisions of CPC, if the parties satisfy the ingredients as
mentioned under Order VIII Rule 6-A of CPC.
10. In the case on hand, defendant No.1 filed application
I.A.No.783 of 2022 seeking to grant leave for filing counter
claim even before framing of issues in the suit. As per the
records it reveals that the suit is posted for written
statement of defendant Nos.2 and 3 only.
11. In Ashok Kumar supra, larger Bench of Hon'ble
Apex Court while considering the provisions of Order VIII
Rule 6-A of CPC specifically held that defendants are
permitted to set up any right or claim against the
plaintiff's claim, provided, the cause of action arises before
or after the suit's filing but before the defendant delivers
their defense. While there's no explicit time limit for filing
a counterclaim, it must adhere to the limitations outlined
in the Limitation Act, 1963. The purpose of introducing
Rule 6-A is to prevent multiple proceedings and ensure
disputes are resolved conclusively. Allowing delayed
counterclaims could undermine this objective and lead to
a miscarriage of justice. Therefore, courts are entrusted
with the discretion to consider various factors, including
the period of delay, prescribed limitation period, reason for
the delay, similarity of cause of action, prejudice to the
opposite party and the overall circumstances of the case.
However, counterclaims cannot be entertained after the
framing of issues or substantial progress in the suit, as
this would be detrimental to the principle of expeditious
justice.
12. In Nitaben Dinesh Patel supra, husband filed OP
seeking divorce invoking the provisions of Section 13 of
Hindu Marriage Act before family Court. During the
course of trial wife filed application seeking amendment of
counter/written statement of pleading stating that when
the marriage between both the parties is subsisting, her
husband married another women and the said marriage is
void. Along with the amendment application, wife filed
counter claim. That family Court allowed the application
to the extent of amendment of written statement/counter
and rejected the relief of counter claim. Aggrieved by the
same, wife filed appeal before Hon'ble High Court of
Gujarat and the same was allowed. Aggrieved by the
same, husband filed SLP, Hon'ble Apex Court while
considering the principle laid down by the Hon'ble full
bench judgment in Ashok Kumar supra held that the
parties has to file counter claim before commencing of
trial and allowed the SLP by setting aside the order passed
by the High Court and confirmed order of the family
Court. However, liberty is granted to wife to file
substantive suit or any other remedy available under law.
13. Hence, the contention raised by the learned counsel
for the petitioners that defendant No.1 has to file
independent suit and counter claim filed by him is not
maintainable under law relying upon the above said
judgment is not tenable under law. It is already stated
"supra" that in the case on hand, the suit is posted for
filing written statement of defendant Nos.2 and 3 only and
the issues were not at framed. Hence the application filed
by defendant No.1 for grant of leave to file counter claim is
in accordance with principle laid down by the Hon'ble
Apex Court as stated "supra".
14. In so far as other the contention raised by learned
counsel for the petitioners that there is no cause of action
and counter claim can be filed against claim of the
plaintiffs only by relying upon the principle laid down in
satyendra supra is also not applicable to the facts and
circumstances of the case, on the sole ground that
whether the scheduled property claimed by the plaintiff in
the suit and the property claimed by defendant No.1 in
the counter claim is one and same or not, whether
identification of the property is in dispute, whether the
plaintiffs by taking shelter under the guise of interim
injunction order granted in I.A.No.677 of 2021 dated
23.12.2021, interfering with the property of defendant
No.1 is true or not, all these are disputed questions of
facts and the same has to be adjudicated and determined
after full fledged trial. It is also relevant to mention here
that the defendant No.1 in his counter claim specifically
pleaded that cause of action arises for filing counter claim
in para 3.
15. In so far the contention raised by the learned
counsel for respondent No.1 that as per the provisions of
Order VIII Rule 9 of CPC, defendant can file counter claim
at any point of time is also not tenable under law as per
the dictum laid down by the Hon'ble Apex Court in Ashok
Kumar supra and Satyendar supra.
16. The other contention raised by the learned counsel
for petitioners that defendant No.1 in the absence of any
pleading in the written statement filed counter claim with
new grounds and the same is not permissible under law is
also not tenable on the sole ground that defendant No.1 in
his written statement in Para 10(a) specifically pleaded
that he is claiming Acs.3.20 guntas in Survey
No.197/1/ఊ by virtue of the assignment patta granted by
the Government and also basing upon Revenue entries,
and further stated that under the guise of interim
injunction order dated 23-12-2021 the plaintiffs are
interfering with the above said property. Defendant No.1
pleaded the very same facts in the counter claim.
17. For the foregoing reasons, this Court does not find
any illegality or irregularity or jurisdictional error to
interfere with the impugned order dated 04.10.2023
passed by the Court below to exercise supervisory
jurisdiction conferred under Article 227 of Constitution of
India.
18. Accordingly, the Civil Revision petition is dismissed.
However, the plaintiffs are entitled to file written
statement/objections to the counter claim filed by the
defendant No.1 by raising all the grounds which are
available under law and the Court below is directed to
consider the same and pass orders on merits
uninfluenced by any of the observations made in this
order or in the impugned order. No costs.
In view of the dismissal of the Civil Revision Petition
interlocutory applications pending, if any shall stand
closed.
_____________________________
JUSTICE J. SREENIVAS RAO
15th March, 2024
Note: L.R.Copy to be marked: 'Yes'
BO.
PSW
