Madras High Court
A.Nandagopala Krishnan vs Antony on 3 August, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/08/2012 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)(MD)No.1011 of 2012 MP.No.1/2012 A.Nandagopala Krishnan ... Petitioner Vs Antony ... Respondent Prayer This Civil Revision Petition is filed against the order dated 11.01.2012 made in IA.No.1035/2011 in OS.No.286/2009 by the learned II Additional District Munsif, Tirunelveli. !For Petitioner ... Mr.S.Mani ^For Respondent ... Mr.M.Saravanan for Mr.R.Subramanian :ORDER
This Civil Revision Petition is filed by the Plaintiff in OS.NO.286/2009 on the file of the learned II Additional District Munsif, Tirunelveli against the acceptance of the counter claim made by the Defendant by way of Additional Written Statement by order dated 11.01.2012 made in IA.No.1035/2011.
2. This Civil Revision Petition arises out of Os.NO.286/2009, a suit filed by the Petitioner for permanent injunction restraining the Defendant from interfering with his possession and enjoyment of the suit property. The Plaintiff has claimed to have purchased the suit property through a registered sale deed dated 26.12.2008 from the Defendant.
3. The Defendant resisted the claim by contending that the sale deed is a forged one created by the Plaintiff in collusion with one Chandrasekar. It is contended inter alia that one Chandrasekar had taken a power deed from the Defendant in order to enable him to rent out the 1st schedule of property of the suit property to one Chandran and by misusing the said power, the sale deed in favour of the Plaintiff has been created. It is contended that the power deed and the sale deed dated 26.12.2008 are forged document.
4. The Trial Court framed necessary issues and the case was posted for trial. The Plaintiff was examined as PW.1 and he was subjected to cross examination. At that stage, the Respondent/Defendant had filed an application to receive Additional Written Statement with counter claim seeking to pass a decree to cancel the sale deed dated 26.12.2008 in respect of the suit property.
5. Mr.S.Mani, the learned counsel for the Petitioner strenuously contended that the counter claim cannot be allowed after the commencement of trial and the amendment sought for to incorporate a counter claim cannot be entertained. He would contend that if the Defendant is permitted to raise a counter claim at a belated stage i.e. after recording of evidence commenced, then it will delay the disposal of the case and the Plaintiff will put to irreparable injury and loss. The learned counsel placed reliance on the decision of the Division Bench of this court reported in 2003-2-MLJ-56 (Southern Ancillaries Private Limited by its Managing Director Vs. Southern Alloy Foundries Private Limited by its Managing Director) in support of his contention that though the Defendant can be permitted to raise a counter claim even after filing the Written Statement, but that should be before the commencement of recording of evidence.
6. On the other hand, Mr.M.Saravanan, the learned counsel for the Respondent drew the attention of this court to the averments made in the original Written Statement and contended that there is factual foundation for the counter claim in the original Written Statement as the sale deed in question was denied as a forged one and therefore, the counter claim made by the Respondent cannot be rejected.
7. This court heard the learned counsel for the parties and perused the records.
8. On a bare reading of Order 8 Rule 6A of CPC, it is clear that filing of counter claim after filing of the Written Statement is not barred if the cause of action for the counter claim had arisen before the filing of the Written Statement.
9. In the case of Mahendra Kumar Vs. State of Madhya Pradesh (AIR- 1987-SC-1395), the Honourable Supreme Court while dealing with the provision of Rule 6A(1) of Order 8 of CPC, held as under:-
"The next point that remains to be considered is whether Rule 6-A(1) of Order 8 of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6- A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A(1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A(1) of the Code of Civil Procedure. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable.
10. In view of the above position in law, the application of the Defendant is not liable to be dismissed on the ground that it had been filed after filing of the Written Statement. It cannot be disputed that the right to prefer counter claim has been statutorily granted to the Defendant in order to avoid multiplicity of suits between the same parties and the same subject matter though based on different cause of action and grounds. Such a procedure helps rival parties to get their dispute adjudicated upon the same proceedings by leading same set of evidence and having common arguments. Therefore, one of the purposes of permitting filing of counter claim is to ensure speedy justice by avoiding procedural repetitions and technicalities. Though it is held that it should be before the commencement of the trial, but a liberal construction of the rule is called for even in a case as in the present case where the defence evidence has not commenced.
11. I derive support to my view from the following paragraph in AIR-1987-SC-1395 (Mahendra Kumar Vs. State of Madhya Pradesh) wherein it is held as below:-
"Paragraph 15 of the above case also speaks about the fact "what is laid down under Rule 6A(1) is that a counter claim can be filed, provided the cause of action had accrued to the Defendant before the Defendant had delivered his defence. The word 'Defendant has delivered his defence' has to be construed in the light of Order 6 Rule 17, which provides for amendment of the pleadings. A combined reading of Order 6 Rule 17 with Rule 6A of Order 8 quoted above goes to show that before the evidence is finally closed by either side the right given to the Defendant under Order 8 Rule 6A can be exercised. In fact while dealing with Order 6, Rule 17 in two cases namely, Nair Service etc. Vs. K.C.Alexandar (AIR-1968-SC-1165) and Jai Jai Ram Manohar Lal Vs. National Building and Material Supply (AIR-1969-SC-1267) the following principle is evolved "mere delay and laches in making the application for amendment is not a ground for refusal of the amendment. Amendment is discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed can be compensated by costs or otherwise."
12. Thus, taking a cue from the above dictum of the Honourable Supreme Court, I am of the view that the court must lean in favour of full and complete justice. As rightly pointed out by the learned counsel for the Respondent, there is clear factual foundation even in the original Written Statement filed by the Defendant and he has put forward his contention regarding the counter claim against the Plaintiff except seeking for cancellation of impugned sale deed. Therefore, no question of prejudice being caused to the Petitioner/Plaintiff by allowing amendment of the Written Statement to incorporate a counter claim.
13. It is true that there is delay in filing the petition to receive the additional Written Statement making the counter claim. The said delay can be condoned by ordering costs to the opposite party. The lower court has awarded a cost of Rs.500/- which can be enhanced to Rs.2000/- The Respondent is directed to pay the additional cost of Rs.1500/- to the Petitioner/Plaintiff within a period of two weeks from the date of receipt of a copy of this order.
14. In the light of the discussions made above, the court below is right in allowing the counter claim by way additional Written Statement and the impugned order does not warrant any interference. With the above said directions, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The II Additional District Munsif, Tirunelveli