Andhra Pradesh High Court - Amravati
M/S Vintage Inn vs Atchutha Sulochana on 14 November, 2019
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HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CIVIL REVISION PETITION No.1731 of 2019
ORDER:
This Civil Revision Petition is filed by the revision petitioner questioning the order dated 16.04.2019, in I.A.No.297 of 2019 in O.S.No.207 of 2016, passed by the learned Principal District Judge, Nellore, Nellore District.
The suit in O.S.No.207 of 2016 was filed seeking eviction of the revision petitioner-defendant from the plant schedule property. The respondent-plaintiff made a prayer to direct the defendant to deliver the vacant possession and also to pay arrears of rent and damages for use and occupation of plaint schedule property etc. It is the contention of the revision petitioner-defendant that the carpet area is wrongly shown excessively and excess rent has been charged from the defendant by the landlord. Initially, when the written statement is filed, the defendant did state the exact areas that were found as per his version and he also stated in his written statement the excess payment was made till December, 2015.
Thereafter it appears that an Advocate Commissioner was also appointed in I.A.No.1030 of 2017. Basing on his report the revision petitioner tried to amend the written statement and make a counter claim. This application was numbered as I.A.No.297 of 2019. It was dismissed on merits on 16.04.2019. Questioning the same, the Civil Revision Petition has been filed.
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This Court has heard Sri Soma Harinath Reddy, learned counsel for the revision petitioner and Sri P. Sridhar Reddy, learned counsel for the respondent.
The counsel for the revision petitioner submits that initially in the written statement that was filed an amendment was sought and I.A.No.297 of 2019 was filed. This was allowed by the Court and the written statement was amended. Para No.17-A was added, by which a plea was raised that as the actual carpet area is different from the area mentioned in the lease, excess rents were paid by the defendant to the plaintiff. It was also mentioned that the said amount is to be deducted from the plaintiff for the future rents.
Thereafter, it appears that the current application has been filed seeking to make a counter claim that an amount of Rs.39,74,734/- said to have been paid in excess, inclusive of interest. Learned counsel for the revision petitioner relies upon the judgment of the Hon'ble Supreme Court of India reported in Mahendra Kumar v State of Madhya Pradesh1that a counter claim can notonly be filed along with written statement it can also be filed later with the permission of the Court. Learned counsel argues that in the initial amendment the excess carpet area issue was mentioned but specific prayer for a decree was not made. Therefore, learned counselfor the revision petitioner submits that the revision petitioner should be allowed to amend the written statement. 1 LAWS (SC) 1987 5 17 3 Lastly, learned counsel submits that frame of the suit, the prayers, the evidence etc., will not change by virtue of this amendment and that it only seeks to make a prayer for a formal decree and the other elements that were necessary for a decree were already pleaded. He lastly concludes by saying that to avoid multiplicity of the proceedings this prayer should be allowed.
In reply to this, Sri P. Sridhar Reddy, learned counsel for the respondent-plaintiff submits that the defendant has the habit of filing applications on one pretext or the other. He points out that in the written statement that was filed clear details of the carpet area etc., are furnished by the defendant. He also submits that in the written statement it is clarified that an excess payment was made. Hence, learned counsel submits that this application, which is filed to make further relief should be dismissed. In the alternative he also argues basing on Madanapalle Municipality v Syed Ahamad and Others2and N. Eshwara Prasad and Others v Margadarshi Chit Fund Limited, Warangal and another3 as the claim is hopelessly time barred and under Article 63 of the Limitation Act-1963 (in short "the Act") as it is made more than three years after the cause of actionarose the same should be dismissed. He submits that as the claim is barred by time, the amendment should not be allowed. He supports the impugned order that has beenpassed by the lower Court. On the issue of matter coming up for trial both the counsel agree 2 2003 (1) ALD 729 3 2004 (3) ALD 128 4 that the trial has not been commenced and that the lower court rightly recorded in para-4 of the impugned order that the matter is now coming for trial.
This Court after hearing both the counsel notices that Order 8 Rule 6A of CPC states that a counter claim can only be made at the time of filing of the written statement. In view of the other provisions of law and the case law cited by the respondent himself it is clear that apart from Order 8 Rule 6A of CPC,Order 6 Rule 17 of CPC and Order 8 Rule 9of CPC also give a right to make a counter claim through an amendment. However, this is subject to the discretion of the Court. A learned single Judge of the High Court of AP relying on the judgment of the Hon'ble Supreme Court of India in Ramesh Chand Ardawatiya v. Anil Panjwani4,came to a conclusion that the discretion given to the Court under Order VI Rule 17 or under Order VIII Rule 9 of CPC exists to allow a counter claim. Therefore, this part of the argument of the learned counsel for the revision petitioner is correct. The question that survives for consideration is whether the claim is clearly barred by time and whether the amendment should be dismissed.
Few facts which are necessary to be noted are the lease was entered in November, 2010. The alleged default was committed from December, 2015 by the tenant. Landlord gave a letter to quit on 31.08.2016. The plaint was filed in 2016. Written statement was filed, wherein the details of the 4 (2003) 7 SCC 350 5 excess rent was paid because of the discrepancy in the carpet area, is also mentioned in para-9 and para-16 of the written statement. It was also asserted that the excess rent was paid. Thereafter Para-17A was added, wherein it is pleaded that an excess amount of Rs.51,70,975/- was paid. This application was allowed as per orders in I.A.No.206 of 2018, dated06.12.2018.
The amendment application, in which the impugned order was passed,is for including a specific counter claim seeking a decree for the excess amount paid along with interest. As per the stamp of the Court on the application, this amendment application was filed on 02.04.2019.
Therefore, if the issue is viewed against the backdrop of these facts it is clear that the defendant-tenant had already raised a plea that he has paid an excess amount. The suit itself was filed in the year 2016. The notice to quit, which preceded the suit, is 03.08.2016. The suit is filed after August, 2016. In the written statement that is filed it is clearly mentioned that excess amounts are already paid. Thereafter by the present application on 02.04.2019 the defendant-tenant wants to seek a decree by making a counter claim for the amounts allegedly paid in excess. It is clear he merely wants to make a prayer for a decree. In the earlier written statement filed he has taken a plea that excess amounts were already paid, now a prayer is made for a "decree". Considering the dates mentioned this Court is unable to conclude that the case is ex facie barred by time. 6
The judgment of the Hon'ble Supreme Court of India reportedin L.J. Leach and Company ltd., v Jardine Skinner and Co.,5is a judgment of five judges,where inparagraph 19, it was held as follows:
"19. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.
In Charan Das v. Amir Khan [1920] 47 I.A. 255 the Privy Council observed:
"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case."
Similarly, in NichhlbhaiVallabhai and Ors., v JaswantlalZinabhai and Ors.,6also the Supreme Court held that to avoid multiplicity of suits the amendment should be allowed.
In the case on hand learned counsel for the respondent relied upon Article 51 and/or 113 to argue that the period of limitation is 3 years. This Court is of the opinion that while there is no dispute about the articles, the question is whether the claim is totally barred or not. This matter, which requires 5 AIR 1957 SC 357 6 AIR 1966 SC 997 7 further investigation. The applicable article and period of limitation, whether entire claim is fully barred or a part of the claim alone is barred,are matters which can only be decided during the course of the trial. As stated earlier the necessary averment that excess amount is paid is already mentioned in the written statement that was filed in the suit itself. This amount was paid till December, 2015 as per the defendant. Whether the prayer for counter claim that is made now is barred by time or not is to be decided by the trial Court during the course of the trail of the suit. It is a mixed question and does not appeared to be barred on the face of it.
In L.J. Leach case (5 supra) the Hon'ble Supreme Court of India held that it is no doubt true that the Court would, as a rule, decline to allow amendments, if a fresh amendment claim would be barred by limitation on the date of application. In the case on hand, the claim is already made in the written statement that is filed earlier. An application is only made to seek a formal prayer for decree. Whether this is barred by time or should be investigated by the Court to avoid multiplicity of proceedings. This Court is of the opinion that this amendment seeking of a formal prayer of a decree for a counter claim should be allowed leaving it open to the trial Court to decide the case on its own merits. It is made clear that the opinion expressed by this Court inthe course of discussions are for the purpose of this Civil Revision Petition only. The lower Court is at absolute liberty to decide 8 the case on its own merits. All questions / defences are left open.
With the above observations the Civil Revision Petition is allowed. No costs.
Miscellaneous Applications pending, if any, shall also stand closed.
__________________________ D.V.S.S. SOMAYAJULU, J Date:14.11.2019.
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