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Judgment
V. Kanagaraj, J.—Both the above Civil Revision Petitions have been filed by one and the same petitioner against the same respondents. The respondents 1 and 2 in both the above Civil Revision Petitions have filed two suits both before the Court of Principal District Munsif. Sivagangai, first one in O.S. No. 96 of 1997 and the Second one in O.S. No. 138 of 1997. The prayers in both the above suits are exactly the same i.e. for declaration and consequential permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit properties. In O.S. No. 96 of 1997 the suit property is a nanja land measuring 3.92 acres in S. No. 120/3 and in O.S. No. 138 of 1997, the suit properties are the nanja lands falling under S. Nos. 120/1 and 120/2 respectively measuring 5.79 acres and 1.06 acres. The suit properties in both the suits are located in one and the same village i.e. Kottagudi Village in Sivagangai Taluk and District. Pending the above said suits, the petitioner herein who is the defendant No. 1 in O.S. No. 96 of 1997 and defendant No. 2 in O.S No. 138 of 1997 has filed two petitions in I.A. Nos. 311 of 1999 and I.A. No 314 of 1999 before the lower Court, both under Order 8 Rule 9 and Section 151 C.P.C. seeking permission of the Court to file counter claim.
In the common affidavit filed in support of both the petitions, the petitioner has pleaded that the trial in the suits is over and the cases are posted for arguments on 14.6.1999, that in the cross-examination of this petitioner by the counsel for the plaintiffs on 3.6.1999, he had questioned whether this petitioner had raised separate reliefs in his statement and whether for such reliefs, he had paid Court Fees : that on being advised that he could also file a counter claim prior to judgment on payment of necessary Court fee in the same suit filed by the otherside, he has come forward to file these applications in both the suits.
The petitioner would further submit that regarding the suit properties, he had been provided with the settlement patta in recognition of his independent possession and belonging and therefore would sought for declaration to the effect that the suit properties are belonging to him and consequential permanent injunction restraining the plaintiffs from in any manner interfering with his peaceful possession and enjoyment of the suit properties and since the properties and the prayers of both the plaintiffs and that of his being same or similar, the petitioner contending that instead of filing a separate suit claiming such reliefs, it would be conducive for him to claim the said reliefs in the same suit making counter claims and therefore would pray the Court to allow the applications as prayed for filing his counter claim also under Order 8 Rule 6-A and Section 151 of the C.P.C. in both the said suits.
Examining both the said applications filed on the part of the petitioner / defendant, taking into consideration the pleadings by parties, stage of the proceedings of the cases, the materials placed on record and upon hearing the learned counsel for both with due opportunity for them to exhaust their remedies in the enquiry especially the judgments cited on both sides, the first one delivered by the Apex Court and reported in AIR 1987 S.C. 1935 cited on the part of the petitioners wherein it is held that "there is no time limit for filing the counter claim" and the judgment cited on the part of the respondents reported Mangulu Pirai Vs. Prafulla Kumar Singh and Others, wherein it is held that it is false to allege that there is no time limit for filing the counter claim which is governed by Order 8 Rule 6-A, CPC, according to which having closed the recording of the evidence on both sides and at the stage when the matter's are posted for arguments, no counter claim could be filed under this provision of law and in further consideration of the very essentials of Order 8 Rule 6-A(1) CPC, the trial Court would ultimately dismiss both the applications filed in both the above suits. Aggrieved, the petitioner/defendant therein has come forward to file the above Civil Revision petitions on certain grounds as alleged in the grounds of revision.
During arguments, the learned counsel appearing for the petitioner would submit that the counter claim could be filed before the Court as defence before the time limit for delivery of defence and would cite a judgment of the Apex Court delivered in Jag Mohan Chawla and another Vs.
Dera Radha Swami Satsang and others, wherein it is held :
.... The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institutions of the suit. The counterclaim expressly is treated as a cross suit with all the indica of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit....
On the other hand, on the part of The respondents 1 and 2, the learned counsel, pointing out the same paragraphs of the judgment of the Apex Court extracted supra, would lay emphasis that under Order 8 Rule 6-A(1) CPC, it is incumbent that only those rights or claims in respect of a cause of action accruing to a defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limit for delivering his defence has expired and if this legal yardstick is used, the learned counsel would exhort that the petitions could not be allowed and hence they have been rightly dismissed by the lower Court. On such arguments, the learned counsel for the respondents No. 1 and 2 would seek to dismiss both the above Civil Revision Petitions.
In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, the short question that is to be answered in both the above Civil Revision Petitions is whether the applications have been filed by the petitioner herein in both the above suits for filing the counter claims in time?''
On the part of the petitioner it is an admitted case that the examination of the witnesses by both sides have been over and in both the suits have been further posted for advancing the arguments of the respective parties on 14.6.1999 and at this stage, since he had been advised, based on the question raised in the cross-examination by the learned counsel for the plaintiffs, the petitioner would file these applications before the lower Court under Order 8 Rule 9 and Section 151 CPC seeking permission of the Court to file his counter-claim in both the above suits as per Order 8 Rule
6-A(1) CPC.
This claim would be stoutly defended by the plaintiffs on ground that it was not the stage at which the defendant could raise such pleas seeking permission of the Court to permit him to raise counter-claim as he has done in the cases in hand and as per the provisions of law since the time is lapsed, the defendant/petitioner is not entitled to file such petitions and hence the petitions are not maintainable in law.
The Court below, having assessed the merit of the cases of both sides in both the above said applications, laying emphasis to the judgment cited and further considering the views of many other judgments most of which are that of the Apex Court of the recent times, would not agree with the arguments of the revision petitioner before the lower Court that there is no limit for making counter-claims and at any stage of the case before judgment, he could do the same and citing Order 8 Rule 6-A(1) CPC''.. the lower Court concluded that the time granted by law had lapsed in the cases in hand as a result of which those petitions could not be maintained at the stage wherein the cases were posted for argument on conclusion of the trial proceedings and would dismiss both the said applications. Order 8 Rule 6-A (1) is specific to the effect that ''any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired"" Needless to mention that not only on the part of the defendant/petitioner, the stage of filing the written statement or additional written statements had been over but also the further time granted by law for even letting in his evidence having been closed and the case having been posted for hearing the arguments of parties, it cannot under any circumstance be construed that the time granted by law especially under Order 8 Rule 6-A(1) CPC is still available for the defendant to file his counter-claim under the relevant provisions of law cited above and since such channels are closed by expiry of time for filing the counter claim of the defendant, the lower Court was right in dismissing the said applications on that score itself and this Court is not able to find any irregularity or inconsistency in the passing of the orders by the lower Court dismissing both the application filed on the part of the petitioner'' herein and hence the interference of this Court sought to be made into the fair and decretal orders made by the Court below in a well considered and merited manner is not at all warranted nor is it necessary in the circumstances of the case. The point is thus answered in favour of the respondents and against the
petitioners.
In result,
(i) both the above Civil Revision Petitions fail and the same are dismissed.
(ii) The fair and decretal orders both dated 2.7.1999 made in I.A. No. 311 of 1999 in O.S. No. 96 of 1997 and I.A. No. 314 of 1999 in O.S.
No. 138 of 1997 by the Court of Principal District Munsif, Sivagangai are hereby confirmed.
(iii) However, in the circumstances of the cases, there shall be no order as to costs,
(iv) Consequently, C.M.P. Nos. 17356 and 17357 of 1999 are also dismissed.