Andhra HC (Pre-Telangana)
Smt. K. Anjamma @ Anjali Devi And Anr. vs K. Sudarshan Reddy And Ors. on 26 November, 2007
Equivalent citations: 2008(3)ALD149
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This petition is filed with a prayer to transfer O.S. No. 485 of 1994, pending in the Court of II Additional Senior Civil Judge, Ranga Reddy District, to the Court of II Additional District Judge, Ranga Reddy District, so that it can be tried along with O.S. No. 912 of 2006, pending in that court.
The 1st respondent filed the suit against respondents 14 and 15, for partition and separate possession of the suit schedule properties. Subsequently, respondents 2 to 13 came to be added as parties, on the basis of the orders passed in different applications filed from time to time.
2. The petitioners got themselves impleaded as defendants in O.S. No. 485 of 1994, as defendants 11 to 13, on 25-11-2003 by filing an IA, under Order I Rule 10 CPC. After getting themselves impleaded, the petitioners filed a written statement as well as a counter claim. They pleaded that several items of immovable property were not included in the suit schedule and claimed that the properties mentioned by them in the counter claim are also liable to be partitioned. They claimed shares in the properties. The trial court did not permit the counter claim presented by the petitioners, on the ground that the value of the properties mentioned therein exceeds its pecuniary jurisdiction. Thereupon, the petitioners filed O.P. No. 923 of 2005, before the District Court, Ranga Reddy District, for transfer of the suit, to a court, which had the corresponding pecuniary jurisdiction. The OP was dismissed, with an observation that, if the petitioners are so advised, they can file a separate suit for partition of the properties, mentioned in the counter claim.
3. Petitioners filed O.S. No. 912 of 2006, in the Court of II Additional District Judge, Ranga Reddy District, at L.B. Nagar, for partition and separate possession of the properties, which were mentioned in the counter claim filed in O.S. No. 485 of 1994. Thereafter, they filed O.P. No. 62 of 2007, in the District Court, with a prayer to transfer O.S. No. 485 of 1994, from the Court of II Additional Senior Civil Judge, Ranga Reddy District, to the Court of II Additional District Judge, to be tried along with O.S. No. 912 of 2006. This O.P. was dismissed on 14.9.2007. Hence, this Transfer CMP.
4. Sri M.V.Durga Prasad, learned Counsel for the petitioners, submits that the view taken by the learned District Judge, while dismissing O.P. No. 62 of 2007 is contrary to the observations made by the court in O.P. No. 923 of 2005. He contends that the petitioners had to file a separate suit, in view of the rejection of their counter claim on an observation made by the learned District Judge in O.P. No. 923 of 2005, and there is no basis for not acceding to the request of the petitioners. He further contends that the subject matter of both the suits is partition of various items of movable and immovable properties, as between the same parties, and unless they are decided by the same court, there is every likelihood and possibility of conflicting judgments being rendered. He places reliance upon some precedents.
5. Sri Mohd. Imran Khan, learned Counsel for the 1st respondent, and Sri B.G. Ravinder Reddy, learned Counsel for respondents 2 to 4, on the other hand, submit that the effort of the petitioners is only to stall the trial in O.S. No. 485 of 1994, which had recorded some progress, after more than a decade. They contend that the very filing of a counter claim by the petitioners was untenable and superfluous, inasmuch as, in a suit for partition, an attempt made by the defendants, to bring certain more items of property, within the purview of partition, cannot be treated as counter claim. They submit that it was always open to the petitioners, to plead that in addition to the items mentioned in the suit schedule, further items are liable to be partitioned, and it would have emerged only after trial, as to what exactly are the properties, that are liable to be partitioned. Learned Counsel also contend that there was no final pronouncement in O.P. No. 923 of 2004, as to the tenability or otherwise of the claim, and that the plea raised by the petitioners, in that regard, cannot be accepted. They too have relied upon some decided cases, in support of their contentions.
6. Normally, there should not be any hesitation, in passing orders to ensure that suits between the same parties for similar relief, are heard by one and the same court. The relief claimed in both the suits referred to above is one, for partition and separate possession of the scheduled properties. The only difference is that in O.S. No. 912 of 2006, the petitioners pleaded for partition of certain items, in addition to those contained in the schedule to O.S. No. 484 of 1994. However, certain peculiar circumstances exist, in the instant case. The 1st respondent filed his suit, way back in the year 1994. It was more than a decade thereafter, that the petitioners got themselves impleaded. Thereafter, they filed a written statement, stating inter alia that certain items of property were not included in the schedule of the suit. They have also filed a counter claim, in this regard. Inasmuch as the value of the counter claim exceeded the pecuniary jurisdiction of the trial court, it was not received, and that gave rise to filing of O.P., for transfer of the suit to a court with higher pecuniary jurisdiction. Since that did not fructify, the petitioners filed an independent suit. Therefore, it needs to be seen as to whether there existed any necessity for presenting any counter claim in O.S. No. 485 of 1994, if the effort of the petitioners was only to ensure that certain other items are also brought under the purview of the partition.
7. Though the issue involved in this Tr.C.M.P., is only about the feasibility of transferring a suit from one Court to another, that too, at the same place, a wider dimension of the matter, arises for consideration.
8. It is too well known that the distinction between the plaintiff and defendant, which exists in other suits, virtually, gets blurred in a suit for partition. While in other categories of suits, the claim made therein would be exclusive for the plaintiff, against the defendant, in a suit for partition, he claims relief to himself, as well as to defendants, in the form of allotment of shares. The nature of contest by the defendants also would be radically different. If the existence of a co-parcenery or the joint property is not in dispute, the defendants may agree for partition, except for variation as to the plea, relating to the extent of shares. That is the reason why, it has often been held that it is immaterial as to whether a party figures as plaintiff, or defendant, in a suit for partition.
9. The well-recognized defences in a suit are admission, denial, previous adjudication (res judicata) and a new case. Into the last category fall, the plea of set-off and counter claim. While admitting or denying the claim made in a plaint, a defendant can put forth his own independent claim. If it does not exceed the one made in the plaint, in terms of monetary value, it becomes set- off. If, on the other hand, it exceeds the claim in the suit, it has to be presented in the form of counter claim. A counter-claim partakes all the characteristics of an independent suit.
10. There existed a view that presentation of counter claim is permissible, only in a suit filed for recovery of money, obviously drawing clue from Rule 6 of Order VI CPC, relating to set-off. The uncertainty, in this regard, was set at rest, with the pronouncement of the judgment by the Supreme Court through its judgment in Jagmohan v. Dera Radha Swami Satsang . Presentation of counter claim cannot be confined to suits for recovery of money alone.
11. Whatever be the permissibility of presentation of counter claims, in other categories of suits, and the consequences that ensue, when the counter claim exceeds, the pecuniary jurisdiction of the court, where the suit is pending; different consequences arise in suits for partition. The contours of determination, in a suit for partition, are too well known. The purport of a preliminary decree is a) to define the shares of the parties, and b) to determine the properties that are available for partition. Wherever passing of a final decree becomes necessary, the purport thereof is, a) to divide the available properties into the shares, as determined in the preliminary decree, and thereafter, b) to allot such shares to the respective parties. If delivery of shares of properties does not take place, without the intervention of the court, filing of EP becomes necessary.
12. One of the areas of controversy between the parties, in a suit for partition, would be about the availability of the properties for partition. The version presented by the plaintiff does not become final. Depending on the nature of claims, it may become necessary, to delete some of the items in the suit schedule, from the purview of partition, or some new items may be brought under its purview. The plea that is to be raised by a defendant, in the context of bringing more items within the purview of partition, cannot be strictly construed, in terms of set-off, or counter claim. At the most, such an exercise can be treated as an effort to correct the version put forwarded by the plaintiff. Secondly, the benefit of inclusion of additional items does not accrue to the concerned defendant alone, who put forth such a plea. The other defendants in the suit, as well as the plaintiffs would be entitled for the benefit of such inclusion. Therefore, even where certain items of property, the value of which exceeds the pecuniary jurisdiction of the court, are sought to be brought under the purview of the partition, through the defence of the defendant, it does not amount to counter claim, nor would it require the transfer of a suit to a different court. If the concerned defendant prefers to file a separate suit for the same relief, it would be his prerogative. That cannot have any bearing upon the competence of the court to deal with such items also, notwithstanding the fact that the monetary value of the said items exceeds its pecuniary jurisdiction.
13. The judgment rendered by a Division Bench of Karnataka High Court, in Smt. Gowramma v. Nanjappa AIR 2002 Karnataka 76, through Justice R.V. Raveendran, as his Lordship then was relied upon by the learned Counsel for the petitioner. A perusal of the same discloses that, apart from not supporting his contention, it supports the view expressed in the above paragraph. It was held that there is no necessity of filing of counter claim by a defendant, in a suit for partition. The following observation of the Division Bench virtually puts at rest the controversy.
...When a plaintiff seeks partition, he is seeking partition not only against the defendants but also against his co-plaintiff, if any. Similarly when a defendant seeks partition, the relief is sought not only against the plaintiffs, but against the co-defendants also. In other words, each party to a suit for partition, whether a plaintiff or defendant, who seeks the relief of partition and separate possession by paying separate Court Fee, is in the position of plaintiff with reference to all other parties to the suit. When a defendant seeks partition and separate possession of his share, in a suit for partition filed by a plaintiff, the defendant's claim is neither a set-off, nor a counter-claim against the plaintiff in the traditional sense, but is one of a wider scope.
14. In Surendra Singh v. Birendra Prasad Singh 2005-BLJR-3-1668, the Patna High Court dealt with similar issue. As in the present case, a separate suit was sought to be filed by a defendant, in a suit for partition, in respect of certain additional items. The High Court observes as under:
Furthermore, in the prayer portion of the said petition no liberty was sought for instituting a fresh suit or fresh claim and the only provision which was mentioned therein was Section 54 and Order VIII, Rule 3 of the Code which provided partition of Estate or separation of share and description of specific boundaries and numbers in survey record with regard to the subject matter of the suit regarding immovable properties. These reliefs can very well be sought by a defendant in his written statement without raising any counter-claim as the suit was for partition in which the respective shares of the parties have to be decided and hence there was no occasion for raising a counter-claim in the suit, specifically when the mother (defendant No. 1) had admittedly died and only the two brothers, namely, the plaintiff and the defendant are surviving as co- sharers of the suit properties.
15. The Gujarat High Court in Subbash Chandrakant Mashruwala v. Suresh Chandrakant Mashruwala 1994-GLH-2-177, observed that a plea, as regards any additional items, does not attract Rule 6A of Order VIII CPC. It reads as under:
Having regard to the nature of the suit wherein the plaintiff has claimed a decree for partition and a rendition of accounts, and the averments made in respect of alleged joint properties in Ex.187, strictly speaking, it cannot be said that there is a counter-claim by the defendant. Therefore, in the opinion of this Court, the provisions of Order VIII, Rule 6A are also not attracted." The suits for accounts are similar to the partition suits. Both of them entail, in passing of a preliminary decree, followed by a final decree. The following observation is apt and relevant, in the context of a plea raised by a defendant in suits of that nature.
The cause of action is the right of either party to have an account and it goes without saving that the account must be correctly taken. In such a case, it is open to either party to show that one or more items have been omitted to be entered in the account, just as it would be open to show that they ought not to have been entered or have been entered incorrectly. No question arises of a counter-claim, which is in substance a cross action or a plea of set off by which a defendant prays for the satisfaction or extinguishment of the plaintiffs debt with effect from the date of the plea. When, as here, the defendants pleaded that a particular item has been omitted in the account, they were merely attacking the correctness of the plaintiffs statement of the position of the account, which formed the basis to the action and were not importing a different or a subsequent cause of action. It is clear that the defendants plea is not in law a counter-claim or a set off.
16. What emerges from the views expressed in the judgments referred to above, is that the counter claim filed by the petitioners in O.S. No. 485 of 1994, or for that matter, through filing O.S. No. 912 of 2006, was superfluous. Even now, the petitioners can insist on additional items of properties being brought, within the purview of partition, in O.S. No. 485 of 1994 itself, without the necessity of filing a counter claim.
17. Further, acceding to the request of the petitioners would virtually wipe away the seniority, which O.S. No. 485 of 1994 had acquired over the past 13 years. The court to which it is sought to be transferred, is not of the same in the hierarchy. The suit has to be naturally renumbered, and thereafter, it will become the one, of the year 2007, if not of 2008.
18. Though extensive arguments have been advanced, on the question as to the consequences that should follow the revision of the pecuniary jurisdiction of the civil courts in the State, it is felt that the same is not immediately relevant.
19. For the foregoing reasons, the Transfer CMP is dismissed. There shall be no order as to costs.