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MADRAS HIGH COURT (MADURAI BENCH)
N. Anand Venkatesh, J.
A.v.murugan - Appellant
Versus
K.maheswari - Respondent
C.R.P.(MD).No. 42 of 2012 and M.P.(MD).No. l of 2012
Decided On : 12-09-2019
IMPLEADING PARTIES - COUNTER-CLAIM - SCOPE - PARTITION SUIT - DEFENDANT'S RIGHT TO IMPLEAD PARTIES IN COUNTER-CLAIM - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
In a partition suit, the defendant filed a counter-claim and sought to implead additional parties as defendants. The trial court dismissed the application, holding that the plaintiff and defendant were the only owners of the property and that there was no requirement to add any other party as a defendant.
Finding of the Court:
The High Court held that the defendant was entitled to implead the additional parties as defendants in the counter-claim. The court reasoned that a counter-claim is in the nature of a cross-suit and that the defendant is the "dominus litis" insofar as the counterclaim is concerned. The court also noted that the trial court had failed to take note of the important aspect that the defendant was entitled to add the parties as defendants since he was the "dominus litis" insofar as the counterclaim was concerned.
Issues: 1. Whether a defendant in a partition suit can set up a counter-claim against the plaintiff? 2. Whether a defendant in a partition suit can implead additional parties as defendants in a counter-claim?
Ratio Decidendi: 1. A defendant in a partition suit can set up a counter-claim against the plaintiff. 2. A defendant in a partition suit can implead additional parties as defendants in a counter-claim. The defendant is entitled to add them as defendants since he is the "dominus litis" insofar as the counterclaim is concerned.
Final Decision: The High Court allowed the civil revision petition and directed the trial court to complete the proceedings in the partition suit and the counter-claim within four months from the date of receipt of a copy of the order.
JUDGMENT
N. Anand Venkatesh, J. - This Civil Revision Petition has been filed against the order passed by the Court below dismissing the application filed by the petitioner under Order I Rule X(2) of C.P.C., to implead the proposed defendants.
2. The petitioner is the defendant before the Court below. The first respondent filed a suit claiming for the relief of partition and to allot half share in her favour. The case of the plaintiff is that the suit property was purchased by the plaintiff and the defendant (petitioner herein) jointly, vide registered sale deed, dated 26.09.2001, and that the plaintiff is entitled for half share in the suit property and the defendant is not willing to enjoy the property jointly with the plaintiff.
3. The defendant (petitioner) took a specific plea that the plaintiff along with her husband and other close relatives and some others had entered into an understanding for the purchase of properties from one Fathima Tanning Company and plot out the properties and sell it to third parties. The total extent of the property was 15 acres and 69 cents. As per the agreement, the advance amount was paid to Fathima Tanning Company and the balance amount was agreed to be paid from time to time, as and when the plotted properties are sold. Pursuant to the agreement, various extents of properties were sold and the money was paid to Fathima Tanning Company. It was further contended that the property was held not only for the benefit of the plaintiff and the defendant but also on behalf of the other persons, who are involved in the joint venture. The defendant has specifically stated that he is entitled for 77.273% in the property, one S.R. Masilamani is entitled for 9.901% and the plaintiff and her husband are entitled for 13.636% in the suit property. Therefore, according to the defendant, the husband of the plaintiff, S.R. Masilamani, Dr. Rathinam and R. Jeeva are necessary parties in the suit.
4. The defendant in the written statement itself has made a counter claim by valuing his share in the property and had also paid the court fee.
5. The petitioner as the defendant, filed an application before the Court below to implead the proposed defendants 2 to 7 as parties in the suit. This application was filed on the ground that they are necessary and proper parties to decide the suit.
6. The Court below dismissed the application on the ground that as per the sale deed, the plaintiff and defendant are the only owners of the property and the plaintiff is claiming for 50% share in the property and therefore, there is no requirement to add others as a party in the suit as they are not the owners of the property even as per the documents produced before the Court. The Court below has further held that if at all the defendant wants to claim any additional share, he can always examine the proposed defendants as witnesses and prove his entitlement.
7. The learned counsel for the petitioner submitted that the petitioner has filed a counter-claim and the same has to be treated as a plaint in a cross-suit, in accordance with the provisions under Order VIII Rule 6(A) of C.P.C., and therefore, the defendant is entitled to implead the necessary parties and the Court below did not take this fundamental issue into consideration. The learned counsel further submitted that the proposed defendants are proper and necessary parties and their presence is required for a complete and effective adjudication of the dispute involved in the suit.
8. The learned counsel, in order to substantiate his submission, relied upon the following judgments:
"1. Vediammal and others vs. M. Kandasamy and others reported in, 1997 MLJ 529 and
2. Sarojini Amma vs. Dakshayani Amma, reported in, ( 1996) 2 KLT 74. "
9. Per contra, the learned counsel appearing on behalf of the first respondent (Plaintiff), submitted that even as per the sale deed, through which the suit property was purchased, only the plaintiff and the defendant are shown as the joint owners of the pr
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