Anthony Chellappa vs Victoria Ammal

K. Natarajan, J.—Defendant is the appellant.

Respondent/plaintiff filed a suit for redemption and for future profits. The facts of the case are briefly as follows: The suit property originally

belonged to one Subbaiah Naidu who is P.W.2 in the suit. There were some mortgages in respect of the suit property and the defendant is the last

mortgagee in respect of the suit property. The plaintiff purchased the suit property on 17.3.1984 under a sale deed Ex. A - 5 subject to the

mortgage. The plaintiff filed a suit for redemption of the mortgaged properly executed by her vendor and deposited the mortgage amount in the trial

court. The defendant filed a counter claim stating that he had made certain improvements and the total cost of the improvements is Rs. 6,100 which

the plaintiff is liable to pay as she is beneficiary of the suit property as the purchaser from the mortgagor P.W.2. The plaintiff did not file any

counter claim.

The trial Judge raised the necessary issues and after considering the evidence adduced by both the parties decreed the suit for redemption and

also allowed the counter claim on the ground that no written statement has been filed by the plaintiff rejecting the objections of the defendant.

The plaintiff who is aggrieved with the passing of the decree in respect of the counter claim preferred is an appeal in A.S.No. 131 of 1981 on

the file of the Sub Court, Tuticorin. The learned Subordinate Judge, Tuticorin on a reappraisal of the evidence adduced by the parties and on a

consideration of the submissions made by the learned Counsel for both allowed the appeal and disallowed the counter claim by observing that as

per the agreement entered into between the defendant and the vendor P.W.2 the defendants entitled to collect the counter claim only from the

vendor of the plaintiff and not from the plaintiff as the plaintiff is not a party to the agreement Ex. B - 6.

The learned Counsel for the appellant submitted as per Order 8, Rule 6 - A, CPC the defendant is entitled to file a counter claim and the court

shall entertain the same if it has been filed before the defendant has delivered his defence and as per Order 8, Rule 6 - B, CPC the defendant had

specifically stated about this counter claim in his written statement and the plaintiff has not contended that the counter claim ought not be

entertained and the same should be entertained by an independent suit. It is pointed out by the learned Counsel for the appellant that the lower

appellate court has not taken into consideration that no written statement has been filed by the plaintiff disputing the counter claim and on the mere

ground that there is an agreement between the defendant and the vendor of the plaintiff P.W.2 the first appellate court had held that the counter

claim amount shall be claimed by the defendant only from P.W.2 and not from the plaintiff and such a finding is incorrect in law. It is also pointed

out that the ultimate beneficiary of the property is the plaintiff and the improvements and electric connection have been obtained by the defendant

by spending necessary amount for raising a wall and also to get the electric service connection to the suit house which is not disputed by the

counsel for the respondent/plaintiff.

It is submitted on behalf of the respondent/plaintiff that under Order 8, Rule 6 - E of Civil Procedure Code, the court has discretion to pass such

orders deemed fit in the case of a counter claim and in view of the agreement Ex. B - 6, between the defendant and the vendor of the plaintiff the

lower appellate court had dismissed the counter claim which cannot be said to the incorrect. If in great difficulty to accept the above submissions of

the learned Counsel for the respondent/plaintiff. If the respondent/plaintiff filed a written statement disputing that she is not liable to pay the counter

claim as it is a separate transaction between the defendant and her vendor P.W.2 and that the said matter should be decided by a separate suit the

submission of the respondent/plaintiff could be entertained. As the; respondent/plaintiff has not filed a written statement disputing the counter claim

and the being the ultimate beneficiary of the improvements made by the defendant to the property I am of the view that the trial court is correct in

decreeing the counter claim and the lower appellate court is not correct in disallowing the counter claim merely on the basis of Ex. B - 6.

The fact that the amount which has been spent by the defendant for raising the wall and to get electric service connection is only Rs. 6,100 is not

in dispute In the above circumstances 1 am of the view that so far as this suit is concerned, as the plaintiff has not filed any written statement

disputing the counter claim and she is the ultimate beneficiary of the suit property, the decree and judgment of the trial court has to be restored and

judgment and decree of the first appellate court has to be reversed.

In the result, the second appeal is allowed and the judgment and decree of the trial court so far as the counter claim are restored with costs

throughout.