Back
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
A.V. Murugan - Appellant
Versus
K. Maheswari & Others - Respondents
C.R.P.(MD).No. 42 of 2012 & M.P.(MD). No. 1 of 2012
Decided On : 12-09-2019
Civil Procedure Code - Rule X - Order I - Constitution of India - Article 227 - suit claiming for the relief – claim of compensation - claiming shares in the property - 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 – Held, 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 1/6th share in the suit property by way of disputed release deed - It is clear from the above judgment that even in a suit for partition, a defendant can set up a counter-claim. This Court has gone to the extent of saying that one defendant can set up a counter-claim against the other defendants. In the present case, the defendant has set up a counter- claim against the plaintiff. The counter-claim has been set up by pleading certain facts and as per the said pleadings, the defendant wants to add certain parties as defendants, since according to the defendant, they are proper and necessary parties and in their absence, no effective order can be passed and whose presence is necessary for complete and final decision - 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 - Petition is allowed
JUDGMENT :
(Prayer: Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order, dated 18.08.2011 in I.A.No.155 of 2010 in O.S.No.259 of 2008 on the file of the learned Principal Sub Judge, Dindigul.)
1. 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
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
