Madras High Court
A.Mohamed Sulaiman vs A.Ameena Beevi (Deceased) on 22 March, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 22.03.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(PD) No.21 of 2011 and M.P.No. 1 of 2011 1. A.Mohamed Sulaiman 2. A.Mohammed Sulthan ... Petitioners Vs 1.A.Ameena Beevi (Deceased) 2.S.Gulsim Beevi 3. Jahir Hussain 4. Jeenath Begum ... Respondents (R3 and R4 brought on record as LRs of deceased R1 vide order of court dated 8.2.12 made in M.P.No.2 of 2011 in C.R.P.No. 21 of 2011) Civil Revision Petition filed against the fair and decreetal order dated 2.11.2010 made in I.A.No.295 of 2010 in O.S.No.86 of 2008 on the file of the Subordinate Judge, Perambalur. For Petitioner :- Mr.P.Valliappan For Respondents :- Mr.A.Sirajudeen (R3 and R4) M/s.R.Chandra Bose Chelliah (R2) ORDER
The petitioners are the second and third defendants in O.S.No. 86 of 2008 on the file of the Sub Court, Perambalur. They are aggrieved against the order passed in I.A.No. 295 of 2010 wherein and whereby the application filed by the first defendant under Section 151 CPC seeking permission to file additional written statement was allowed. The second respondent herein is the plaintiff in the said suit. She prayed for partition of 1/6th share in the suit properties and for separate possession of the same. The plaintiff and the defendants 1 to 3 are brothers and sisters and they are the children of one Abdul Muthaleef.
2. It is the case of the plaintiff that the suit properties were purchased by their father 20 years ago and he died on 15.6.1986 intestate. After his death, both the plaintiff and the defendants are entitled to their respective shares in the suit properties as the legal heirs of the said Abdul Muthaleef. According to the plaintiff, the sons viz., the second and third defendants are entitled to 2/3rd share and the daughters viz., the plaintiff and the first defendant are jointly entitled to 1/3rd share. Thus, the plaintiff filed the said suit seeking for partition of her 1/6th share in the suit properties.
3. The first defendant filed a written statement and contended that she is also entitled to 1/6th share in the suit properties and was always ready for amicable partition between the parties. It is specifically contended by her at paragraph 10 of the written statement that she is an illiterate lady and taking advantage of the same the second and third defendants got her thumb impression in a release deed by falsely stating that she was shown as a witness to a document and got the said release deed registered before the Sub-Registrar's Office. The said fact of execution of release deed came to the knowledge of the first defendant only from the written statement filed by the defendants 2 and 3. Thus, it is contended by the first defendant that the said release deed is a fraudulent document and liable to be set aside and for which purpose she will pay the necessary court fee at the time of passing the judgment and decree. It is her specific case that she has not executed the release deed dated 19.12.2004 voluntarily and did not receive Rs.40,000/- at any point of time from the defendants 2 and 3.
4. The first defendant, after filing such written statement, filed I.A.No. 295 of 2010 and sought permission to file an additional written statement on 1.10.2010 to specifically raise a counter claim to set aside the said release deed dated 19.12.2004 and for payment of court fee for such purpose.
5. The said application was resisted by the defendants 2 and 3. It is their case that when all the parties have been examined and the suit was also at the part heard stage, the first defendant cannot file the additional written statement. The first defendant did not take any steps to make the counter claim all these years and therefore it is not open to her to claim the same just before the disposal of the suit that too after the arguments of both sides are over.
6. The Court below after considering the rival submissions as well as the pleadings of the respective parties allowed the application by holding that what is sought to be raised in the additional written statement had already been raised in the original written statement itself and therefore there is no prejudice caused to the second and third defendants. The learned Judge found that the relief is not barred by limitation and however, imposed a cost of Rs.1000/- to be paid by the first defendant to the second and third defendants on the reason that the application came to be filed belatedly. When the cost amount was not received by the defendants 2 and 3, even though the same was tendered by the first defendant in time, the Court below, by recording the said fact, allowed the application. Aggrieved against the same, the present Civil Revision Petition is filed by the defendants 2 and 3 .
7. The first defendant, who was arrayed as first respondent herein died during the pendency of the above Civil Revision Petition and her legal heirs viz., third and fourth respondents were brought on record.
8. Mr.P.Valliappan, learned counsel appearing for the petitioners submitted that the application was filed by the first defendant belatedly by challenging the release deed dated 19.12.2004. Therefore, according to the learned counsel, the counter claim made by the first defendant in the year 2010 is barred by limitation. Under Order 8 Rule 6(A) of CPC, the time limit is prescribed for filing a counter claim and the same cannot be made by way of filing any additional written statement. He further argued that the counter claim can be maintained only against the plaintiff and not against the co-defendant. As the counter claim made by the first defendant is in respect of an independent cause of action, the counter claim is not maintainable. According to the learned counsel, the first defendant has to file a separate suit and she has also not given any explanation for such inordinate delay in filing the such counter claim. In support of his contention, the learned counsel for the petitioner relied on the decisions of our High Court and various High Courts which are discussed in the latter part of this order.
9. Per contra, Mr. A.Sirajudeen, learned counsel appearing for the third and fourth respondent, who are the legal heirs of the first defendant, contended that the first defendant had raised the counter claim in the original written statement filed by her at paragraph 8 and 10 itself and only not paid the court fee at that time. Thus, she had not made any fresh counter claim but only sought to file an additional written statement. It is the case of the first defendant that the so-called release deed is a fraudulent document. The first defendant also stated the reasons as to why steps have not been taken earlier. The learned counsel further argued that when already a plea had been raised by the first defendant in the written statement, there is no question of any limitation that can be raised by the second and third defendants. He pointed out that the very same second and third defendants also filed additional written statement during the year 2010 that too after the commencement of the trial and therefore they cannot complaint about the limitation or against filing of the additional written statement by the first defendant. The learned counsel in support of his submission relied on certain decisions, which are discussed separately in the latter part of this order.
10. Heard the learned counsel appearing on either side and perused the materials placed before this court.
11. The dispute is between the brothers and sisters in respect of the suit properties which are sought to be partitioned by claiming that the same belonged to their late father by name A.Abdul Muthaleef. Whether the claim of the plaintiff supported by the first defendant in the said suit is valid or not is for the trial Court to consider and decide the same based on the merits of the case. The only issue before this court is as to whether the first defendant, during the pendency of the suit, is entitled to file an additional written statement and make a counter claim or not.
12. Admittedly, the suit came to be filed in the year 2007 and the second and third defendants have filed their written statement during the month of December 2007 itself. In the said written statement, they specifically contended that the first defendant executed a release deed on 19.12.2004 in favour of the 2nd and 3rd defendants thereby releasing her share in the suit property. The said claim of the defendants 2 and 3 as against the first defendant is denied and disputed by the first defendant in the original written statement filed immediately after the written statement of the defendants 2 and 3. In the said written statement, it is specifically contended by the first defendant at paragraph 10 that she is an illiterate and had not executed any release deed in favour of the second and third defendants and it is a fraudulent document obtained under the guise of getting her thumb impression as a witness to a document. She had also specifically denied the execution of the said document and claimed that the same is liable to be set aside and she is ready to pay the necessary court fee for the same at the time of passing the judgment and decree. She further denied the receipt of Rs.40,000/-. Therefore after making such contention in the original written statement the first defendant filed the application in I.A.No. 295 of 2010 seeking to file additional written statement . When the said additional written statement sought to be filed is perused, it only reiterates the contention already raised by the first defendant in her original written statement apart from saying that she failed to pay the court fee earlier for her counter claim which she wanted to pay now.
13. The first defendant in support of her application filed an affidavit and stated that the court fee was not paid along with the original written statement by mistake and as the relief sought for in the additional written statement has already been raised in the original written statement itself, the claim is not barred by limitation. She also specifically stated that she is not going to adduce any additional evidence in pursuant to the filing of the additional written statement.
14. Under these circumstances, we need to find out as to whether the first defendant is entitled to file additional written statement and whether the court below is right in allowing the said application .
15. Admittedly, the first defendant filed her original written statement immediately after the written statement filed by the second and third defendants. It is also not disputed that the first defendant made specific denial of execution of release deed dated 19.12.2004. In fact, it is her categorical assertion in the very written statement itself that the said release deed was obtained on fraud and mis-representation played by the defendants 2 and 3. Thus, she wanted the court to declare the said settlement deed as null and void. In respect of the said plea, the first defendant reserved her right to pay the court fee at the time of final disposal of the suit. It is also seen that the first defendant is not making any fresh claim by way of filing the additional written statement. Therefore, it can be safely concluded that the first defendant had raised counter claim at the first instance itself, viz., while filing the original written statement. Therefore, the contention of the second and third defendants as if the first defendant is raising the counter claim only now has to be rejected.
16. It is also the case of the first defendant that she came to know about the existence of the settlement deed only after knowing from the written statement filed by the second and third defendants. Admittedly, the said written statement of the second and third defendants came to be filed only on 10.12.2007 and the first defendant had also raised the plea in the original written statement itself denying such execution of settlement deed and challenged the same.
17. The next question will be as to whether the first defendant can make a counter claim against the other co-defendants. Learned counsel for the petitioner strongly relied on Order 8 Rule 6A of Civil Procedure Code to contend that any counter claim can be made only as against the plaintiff in a suit and not against the defendant. Therefore, he submitted that the application filed by the first defendant is not maintainable.
18. A perusal of the Order 8 Rule 6A of CPC , no doubt contemplates that a counter claim in a suit has to be made against the plaintiff. A careful perusal of Rule 6A would indicate that it is not very specific that the counter claim by a defendant has to be made only against the plaintiff. In other words, in a given circumstances, it does not specifically bar the filing of a counter claim against the co-defendant as well. Why I am expressing this view is that the plea of the parties and relief sought for vary in every suit and only by taking into consideration of the facts and circumstances of each case, it has to be determined as to whether such counter claim raised by a defendant can be restricted or permitted only against the plaintiff or it can be extended even to the other co-defendant. For instance, in a suit for partition, the parties are being interchangeable and therefore a defendant therein can be considered to be a person suing. At this juncture, I would like to rely on the decision of a learned single Judge in C.Kasinathan Vs. N.Athiappan Servan and others ( 1997(II) CTC 717) at paragraph 7 as follows:-
"7. The lower appellate Judge has not properly considered the other question that Section 4(1) of the Act will come into play only when the alienees sue for partition. In Sri Booman V. Kuppammal Achi, 1968 (2) MLJ 36, it was held that a defendant in a partition suit can be considered to be a person suing. In Siba Prasad V. Bibhuti Bhusan, AIR 1989 Cal. 35, a similar decision was taken to this effect. In Valliammal V. Rajathiammal and 11 Others 1993(2) LW 334 also the learned Judge has taken the same view. "
19. Therefore, when a defendant in a partition suit can be considered as a party suing also, I am of the view that such defendant can also make a counter claim under Order 8 Rule 6A in a partition suit against the co-defendant. When such claim is exercised, certainly, the person making such plea becomes the plaintiff insofar as that relief is concerned and the person against whom such claim is made, becomes the defendant in the very same suit. That is why sub-clause (2) of Order 8 Rule 6A was very specific in saying that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce the final judgment in the same suit both on the original claim and on the counter claim. Therefore, in my considered view, it cannot be said that Order 8 Rule 6A in stricto sensu is applicable only as against the plaintiff and not against a co-defendant.
20. Even otherwise, an overall consideration of the facts and circumstances of the case would necessarily warrant the Court below to consider the said issue raised by the first defendant, while deciding the suit filed by the plaintiff , in view of the fact that the first defendant also claimed 1/6th share in the suit property. Therefore, for adjudication of her claim, necessarily the rival claim made by the defendants 2 and 3 based on the disputed settlement has also to be gone into by the court below. While considering such rival claim of the defendants 2 and 3, necessarily the Court below has to go into the question with regard to the validity of the said settlement deed which has been raised by the first defendant in her original written statement itself. Therefore, even in the absence of the application under Order 8 Rule 6A , the Court below is bound to consider this issue in order to arrive at a just and proper conclusion and to decide the lis between the parties without relegating any one of them to agitate an issue, which is relevant and germane to the main issue, to be agitated and adjudicated upon in a separate proceedings.
21. Now let me consider the various case laws relied on by both sides. The decisions relied on by the learned counsel for the petitioner are discussed hereunder:-
22. In Karuppayammal and another Vs. S.Ramalingam Pillai and others ( 2000 (1) L.W. 593) the learned single Judge of this Court held that the counter claim by a defendant can be maintained only as against plaintiff and not as against the defendant. The facts of the said case reveal that the subject matter suit is one for recovery of possession and for mesne profits. In the said suit, a third party filed an application seeking to implead himself as third defendant and also prayed for a declaration of his title to the suit property and for direction to the defendants 1 and 2 therein to deliver possession of the same. Thus, the learned judge found that the defendant cannot seek counter claim against co-defendant. In this case, the subject matter suit is for partition and therefore the status of the parties in this suit cannot be equated with the status of the parties in other suits with other reliefs. It is well settled that in a partition suit the defendant can be considered to be a person suing. This position has been reiterated by this court in a decision reported in 1998 (1) MLJ 137 (C.Kasinathan Vs. N.Athiappan Servai and Others) . Therefore, when a defendant in a partition suit can be considered to be a person suing, then a counter claim can also be made against such defendant by another co-defendant. In fact, when a counter claim is made, the person viz., the defendant who makes such claim becomes the plaintiff insofar as that claim is concerned and person against whom such claim is made becomes the defendant. Sub-clause (2) of Rule 6A of Order 8 CPC makes it clear that such counter claim shall have the same effect as a cross suit. Even if the plaintiff in the said suit discontinues or the suit itself is stayed or dismissed, still the counter claim can be proceeded with as contemplated under Order 8 Rule 6D . Therefore a combined reading of Order 8 Rule 6A(2) with Order 8 Rule 6D makes it abundantly clear that the counter claim in a partition suit can be made even against the co-defendant.
23. The learned Judge in the above said decision reported in Karuppayammal and another Vs. S.Ramalingam Pillai and others ( 2000 (1) L.W. 593) has considered the said issue based on the facts and circumstances of the said case. Moreover Rule 6D and its effect was not placed and considered in that case. Therefore, I am of the view that the said decision of the learned Judge is factually distinguishable and the findings rendered therein can not be be applied to the facts and circumstances of the present case.
24. At this juncture it is useful to refer the decisions of Patna High Court in Rajendra Upadhyays Vs. Madan Rai and Others (2007(4)PLJR 705) relied on by the learned counsel for the respondent. In the said decision, the learned Judge has held that a counter claim has necessarily to be directed against the plaintiff in the suit and incidentally or along with the plaintiff it could also be claimed against the co-defendant. Therefore, in my considered view, it can not be said that under all circumstances, the counter claim can not be filed against the co-defendant.
25. The next decision relied on by the petitioner's counsel is reported in 2011 (2) L.W. 679 ( S.Tajudeen Vs.S.V.Sambandan and Others). In the said decision a learned single Judge of this Court held that a counter claim shall be made by the defendant before he could deliver his defence and the same cannot be made after the time prescribed under Rule 6A. In this case, as the facts would reveal that the original written statement filed by the first defendant itself contains the required averments for counter claim, in my considered view, the above said decision relied on by the petitioner is also factually distinguishable.
26. Likewise the other decisions relied on by the petitioner's counsel are reported in AIR 1991 (Karnataka) 283 (1) (Smt. Parvathamma Vs. K.R.Lokanath and others); 2002 (1) L.W. 765 ( Athiganapathy Vs. A.V.Saminathan ); AIR 2008 Uttarakhand 11 ( Dr.T.D.Padalia and Another Vs. District Judge, Nainital and Others); 2008 (2) L.W. 974 (Bollepanda P.Poonacha and Another Vs. K.M.Madapa). In all those decisions the Courts have held that the counter claim can not be entertained either after evidence or trial or framing the issues. Hence, they are all factually distinguishable and not applicable to the case on hand, in view of my reasoning given while considering the decision reported in 2011 (2) L.W. 679 ( S.Tajudeen Vs.S.V.Sambandan and Others).
27. So far as the other decisions relied on by the learned counsel for the petitioner reported in 2009 (10) SCC 84 (Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others) and 2011 (6) CTC 477 Chinnu Padayachi and another Vs. Dhanalakshmi and others) are concerned both are in respect of amendment of pleadings under Order 6 Rule 17 . In my considered view, those decisions are not applicable to the case on hand.
28. The other decision relied on by the learned counsel for the petitioner is reported in 1999 (III) CTC 577 (Ramalathumi Ammal Vs. T.Jeevanatham ). In the said decision, the learned single Judge of this Court held that if the counter claim in respect of a relief is barred by limitation, then the said claim cannot be permitted to be raised. The learned single Judge by relying on the decision of the Supreme Court reported in Mahendra Kumar Vs. State of M.P. (1987 (3) SCC 265) held that a counter claim to seek a declaration of a document as void cannot be made after the period of limitation. No doubt, it is true that a counter claim should not be barred by limitation and such a question is not only a question of law, but also a question of fact and consequently the same has to be gone into by the Court below by taking note of the pleadings and evidence let in by both parties. In fact, the Court below has gone into that aspect also and given a finding that the claim is not barred by limitation. Such finding has to be treated only as a prima facie finding and therefore, the issue regarding limitation has to be necessarily gone into at the time of final disposal of the suit and a finding has to be rendered on that aspect. The first defendant was categorical in her first written statement itself that she came to know about the existence of such a document only from the written statement filed by the by the defendants 2 and 3. Therefore, it is for the parties to convince the Court on the question of limitation.
29. The following are the decisions relied on by the learned counsel appearing for the contesting respondent.
30. In Kassem Gharami and Others Vs. Niamat Gharami and Others ( 1991 (2) CALLT 118 HC) the Calcutta High Court held that the counter claim cannot be rejected for non-payment of court fee. It is also held therein that the counter claim is to be treated as a cross suit and a counter claim cannot be rejected on the ground that the claim is barred by limitation when in the statement of allegation of such claim it cannot be said that it is so barred.
31. In Mahendra Kumar Vs. State of M.P. (1987 (3) SCC 265) , the Hon'ble Supreme Court has held at paragraph 15 as follows:-
"15. The next point that remains to be considered is whether Rule 6A(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 6A(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 6A(1) is that acounter-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 counterclaim 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 6A(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 6A(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. "
32. In an unreported decision of this Court made in C.R.P.(PD) No. 1713 of 2012 (Premalatha & Others Vs. Karuppiah and another) dated 3.10.2012, it has been held at paragraphs 6 and 7 as follows:-
"6. The Hon'ble Supreme Court in the decision reported in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 (3) MLJ 26 (SC), held that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases, the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order 6, Rule 17 of the C.P.C., if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order 8, Rule 9 of the C.P.C., if sought to be placed on record by way of subsequent pleading." The Hon'ble Supreme Court observed that the counter-claim has to be entertained for avoiding multiplicity of proceedings and also to save court's time. Under Order 8, Rule 9 of CPC, there is no provision to the effect that no additional pleadings, subsequent to the proceedings, shall be entertained. I have also observed that there is no time limit for making counter-claim in the additional written statement.
7. In view of the above said views expressed by the Hon'ble Supreme Court, I am of the view that there is no legal embargo for this Court to entertain the additional written statement with counter-claim and no prejudice would be caused to the other side.
33. In another unreported decision of Delhi High Court made in C.R.P.No.21 of 2010 (Sukhpreet Singh Vs. Kamaljeet Kaur) dated 4.2.2010, it is held that the relief can be either by way of counter claim or by way of separate suit. The Delhi High Court further pointed out that the object of the amendment to the Order 8 Rule 6A was to avoid multiplicity of proceedings, and as such the defendant has an option under the said provision to file a counter claim and if he chooses not to do so it cannot put an embargo on her to file a suit at a later stage.
34. The learned counsel further relied on the decision in Ganesh Tiwari and Another Vs. Ramakant Tiwari and Others ( 2007 (1) BLJR 831) of Jarkhand High Court, wherein it is held as follows:-
7. "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 protection, 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."
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"Therefore, when the defendants in a suit have paid separate Court fee and sought partition and separate possession of their shares also, the suit cannot be dismissed as withdrawn or settled out of Court by plaintiff with other defendants."
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"........Perhaps, the Court below has not correctly appreciated the provisions of Order VIII, Rule 6(A) to 6(D) of the Code of Civil Procedure. Sub-section (4) of Rule 6(A) clearly provides that counterclaim shall be treated as plaint and governed by the rules applicable to plaints. In other words, all provisions relating to a plaint provided in the Code of Civil Procedure and also relating to the valuation of the counter-claim and payment of Court-fee shall have to be followed. Merely because a separate suit for declaration in respect of the property sought to be included by way of counter-claim as joint family property would be maintainable, that cannot be a ground to disallow the counter-claim made by the defendants for deciding the question in the same suit. It is well settled that counter-claim could be treated as cross suit but could be decided in the same suit without relegating the parties to a fresh suit. Instead of relegating defendants to an independent suit and to avoid multiplicity of proceedings, provisions have been inserted under Order VIII, Rules 6(A) to 6(D) in the Code of Civil Procedure. "
35. The learned counsel for the respondent relied on the decision in Jag Mohan Chawla and Another Vs. Dera Radha Swami , Satsang and Others (1996 (4) SCC 699 ) wherein the Hon'ble Supreme Court held that the counter claim is aimed to avoid multiplicity of proceedings and therefore it is maintainable not only in respect of money suits but also in respect of other suits also.
36. He further relied on the decision in Bollepanda P. Poonacha and another Vs. K.M.Madapa ( 2008 (13) SCC 179) to contend that amendment of the written statement deserves more liberal consideration than the application for amendment of the plaint. In the said decision it is also observed by the Apex Court that a right to file counter claim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. As I have already pointed out that the first defendant had raised her counter claim even in the original written statement at paragraph 10 , the same cannot be rejected.
37. All the above decisions relied on by both sides only indicate that an issue which is raised by the defendant by way of counter claim even arising out of fresh cause of action can be considered within the same suit as a cross suit in order to avoid multiplicity of proceedings between the parties. In this case the counter claim made by the first defendant cannot be said to be as the one out side the scope and lis between the parties in the suit. The plaintiff filed the suit for partition of her 1/6th share of the suit property. The first defendant supported the plaintiff and claims her 1/6th share also. But the defendants 2 and 3 claimed that the first defendant had released her right of 1/6 th share in the suit property by way of disputed release deed.
38. In all fairness and in the interest of justice, the first defendant should be given an opportunity to make her counter claim against the defendants 2 and 3 especially when she claims to be an illiterate and pleads no knowledge of the execution of the said document. The fight is between the brothers and sisters and as such, too much of technicalities should not be permitted to flow in between the claim and counter claim made by them. Otherwise, the litigation would never reach its finality. In order to arrive at a just and proper conclusion in the said suit and to decide the lis between the parties, the Court below has rightly allowed the application filed by the first defendant for filing the additional written statement with which I find no infirmity or irregularity warranting interference by this court. Accordingly, the Civil Revision Petition deserves no merits and the same is dismissed. Consequently, the connected M.P. is closed. No costs.
22.03.2013 Index:Yes/No Internet:Yes/No krr/ To The Subordinate Judge, Perambalur.
K.RAVICHANDRABAABU,J.
krr/
Pre-Delivery Order in
C.R.P.(PD) No. 21 of 2011
Dated:- 22 .03.2013