Madras High Court
K. Meenakshisundaram vs Selvi. C.K. Chandra on 1 March, 2000
Equivalent citations: 2000(4)CTC100
ORDER
1. Defendant in O.S. No.9502 of 1995, on the file of the XIV Assistant Judge, City civil court, Madras, is the revision petitioner.
2. The suit was originally instituted as C.S. No.862 of 1995, on the original Side of this Court. Petitioner herein is a tenant of a building belonging to the plaintiff, respondent herein. Plaintiff filed the suit for recovery of a sum of Rs. 1, 44, 913-50. P. together with interest at 12% p.a. from the date of plaint till date of payment, and also for costs of the suit.
3. According to plaint, defendant is a tenant agreeing to pay a rent of Rs.96 per mensem. Since the rent paid by defendant was very low, plaintiff filed R.C.O.P. No.1886 of 1989, on the file of X Judge, Court of Small Causes, Madras, for fixation of fair rent, and fair rent was fixed at Rs.2,161 per month from 12.7.1989, as per Order dated 12.3.1992. The order-further directed that the tenant should pay fair rent at that rate from 12.7.1989, namely, the date of the application. On 16.4.1992, plaintiff issued a notice asking the defendant to pay the different amount in view of the fixation of fair rent, for which the defendant sent a reply refusing to pay the same. The suit was, therefore, laid for recovery of the amount as stated above.
4. In the suit, defendant filed a written statement, as early as on 29.7.1995. Long thereafter, when the suit was posted for trial, he moved I.A.2748 of 1997 under Order 8, Rule 6A of the Civil Procedure Code, to receive counter claim. In the counter claim, he wanted a declaration that the order fixing the fair rent had to be treated as a nullity, and on that basis, the plaintiff is not entitled to any amount by way of arrears of rent.
5. The same was seriously opposed by the plaintiff, and, by the impugned Order, the lower Court refused to receive the counter claim. The same is challenged in this Revision.
6 After hearing learned counsel for petitioner, I do not think that there is any ground for inter-ference in this Revision.
7. Even while the fair rent application was pending, petitioner raised preliminary objections regarding maintainability of the fair rent application. Since the Rent Controller refused to hear the preliminary objection, the matter was taken in W.P. No. 13255 of 1991. A learned Judge of this Court refused to entertain the writ petition, and confirmed the finding of the Rent Controller that the preliminary objections could also be considered along with the main application. The petitioner has in did not pursue the matter, and an exparte decree was passed, fixing fair rent. It is on the basis of that order fixing fair rent, plaintiff has filed the present suit for recovery of the amount.
8. Why I have referred to the order in the writ petition is, because, the petitioner herein was contesting the fair rent application, and, after the Order of this court, he did not pursue the matter, when the fair rent petition came up before the Rent Controller for hearing. The present suit was filed as early as on 6.2.1995, and the written statement was filed as early as on 29.7,1995. The Fair Rent was fixed long before the institution of the suit even in the year 1992. It is true that under order VIII Rule 6-A of the Code of Civil Procedure, a counter claim respect could be filed regarding any right or claim in respect of a cause of action accrued to the defendant and it need not even relate to the cause of action referred to in the plaint.
9. In Jag mohan Chawla and another v. Dera Radha Swami Satsany and others, , Their Lordships of the Honourable Supreme Court have held as follows, regarding the scope of filing of counter claims-
... 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 ...... " (Italics supplied) If we go only by the decision of the Honourable Supreme Court, it has to be held that the defendant is entitled to prefer the counter claim. It is admitted that the cause of action for filing the counter claim arise prior to the institution of the suit and, therefore, filing a counter claim by way of written statement is also in maintainable. But the question is, whether the counter-claim is barred by limitation. In the decision reported in Mahendra Kumar v. State of Madhya pradesh, of the judgment. Their Lordships have held thus;-
" The next point that remains to be considered is whether Rule 6- A (1) of order VIII 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. Under Article 113 of the Limitation Act. 1963, the period of limitation oft three years from the date the right sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter-claim, which is treated as a suit under, Section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the right to sue......." (Italics supplied)
10. Pursuant to the decision of the Honourable Supreme Court, it has to be held that the same is barred by limitation. Apart from the same, the counter claim is also barred under Rent Control Act. Fixation of fair rent is a remedy provided both to the landlord and tenant under the Rent Control Act. It is a special enactment, which, for the first time, gives the right to fixation of fair rent either on the application of are landlord or tenant. What the matters to be taken into consideration for fixing the fair rent are also provided under the Statute. A right of appeal and revision is also provided under the Statute. The Rent Control Act also says that but for the right of appeal and revision, the order of Rent Controller is conclusive. When a special remedy is provided under the Act, and the Act also says as to how an error or mistake in the Order passed by the Rent Controller is to be rectified, by preferring an appeal or Revision under the Statute it has to be held that a suit to set aside the order of the Rent Controller or to have it declared as invalid or void is not maintainable. According to me, the counter claim is impliedly barred under Sec. 9 of the Civil Procedure Code, 11, In the result, the order of the lower Court is correct, and no interference is called for. The Civil Revision Petition is, therefore, dismissed. C.M.P. No.4250 of 2000 C.M.P.No.4250 of 2000 for stay is also dismissed.