C.R.P.(MD).No.1207 of 2019

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

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C.R.P.(MD).No.1207 of 2019

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.

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C.R.P.(MD).No.1207 of 2019

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

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C.R.P.(MD).No.1207 of 2019

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 th