BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 01.11.2023 Delivered on: 10.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI C.R.P.(MD)No.1207 of 2019 and C.M.P.(MD)No.6752 of 2019 Ganapathy ... Revision Petitioner/1^st Respondent/Plaintiff Vs.

1.Papanasam ... 1^st Respondent / Petitioner /2^nd Defendant

2.Sankar Babu ... 2^nd Respondent / 2^nd Respondent/1^st Defendant Prayer:-Civil Revision Petitions filed under Article 227 of the Constitution of India, to set aside the fair and decretal order passed in I.A.No.41 of 2015, in O.S.No.500 of 2011, dated 23.02.2017, on the file of the District Munsif, Tenkasi.

For Petitioner : Mr.T.S.Mohamed Mohideen For Respondents : Mr.K.Hemakarthikeyan : No appearance for R2

ORDER

The plaintiff, in O.S.No.500 of 2011, is the revision petitioner.

Pending the suit, an application in I.A.No.41 of 2015 was taken out by the second defendant, seeking permission to file a counter claim under Order VIII Rule 6-A C.P.C. The said application came to be allowed, as against which, the plaintiff is before this Court.

2. I have heard the learned counsel for the revision petitioner and the learned counsel for the contesting respondent.

3. It is the case of the plaintiff that the suit has been filed for declaration in respect of 300 sq.ft., pursuant to the purchase said to have been made by the plaintiff. The second defendant has filed his written statement initially stating that the plaintiff was entitled to only 300 sq.ft. of vacant land and that the plaintiff could not claim right over any additional area. Subsequently, the second defendant filed the said I.A.No.41 of 2015 to receive his counter claim.

4. The said application was resisted by the plaintiff on the ground that the counter claim has been filed belatedly, when the suit has been posted for trial and that the allegations made in the counter claim are absolutely false and baseless. The reasons given by the second defendant that he was suffering from severe knee pain and was taking treatment in Kerala and therefore, he could not file the claim earlier, was totally false and baseless as the second defendant participated in the inspection conducted by the Advocate Commissioner on 25.05.2014 and therefore, the second defendant has come up with a false case. Further, it is also stated that the application has been taken out after three years and therefore, the relief prayed in the counter claim is also barred by limitation.

5. The Trial Court, after hearing both sides, has held that there is no legal embargo to entertain the additional written statement / counter claim and no prejudice would be caused to the other side and allowed the application and received the additional written statement / counter claim.

6. Aggrieved by the said order of the trial Court, the plaintiff has preferred the above Civil Revision Petition on the ground that the counter claim is sought to be made belatedly; the counter claim runs beyond the scope of the suit, including the prayer in the suit and that the trial Court ought to have dismissed the application under Order VIII Rule 6-A C.P.C.

7. The learned counsel for the revision petitioner would place reliance on the judgment of the Hon'ble Supreme Court in the case of Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri reported in 2020-2-SCC-394, where the Hon'ble Supreme Court held that the whole scheme of Order VIII CPC unequivocally points out at the legislative intent to advance the cause of justice by placing embargo on the belated filing of written statement, set off and counter claim, and that right to file a counter claim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order VIII Rule 6A C.P.C and that as a counter claim is treated to be a plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 and time barred suits cannot be entertained under the guise of a counter claim, just because of the fact that the cau