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Judgment
Thomas P. Joseph, J.—Heard. Admit.
The following substantial questions of law are framed:
(i) if property of the defendants is not scheduled in the counter claim and as property of the defendants was not a subject matter of the suit, can the lower courts exercise its jurisdiction to grant relief regarding property of the defendants?
(ii) As defendants have failed to prove that their property is entitled to lateral support from the property of plaintiff and as property of defendants is not made a subject matter of the suit, can the court grant a decree in favour of defendants?
Parties are referred as plaintiffs and defendants as in the trial court.
First respondent/second defendant appears through counsel. Second respondent is deleted from the array of parties.
This Second Appeal arises from the judgment and decree of learned Second additional Munsiff, Thiruvananthapuram in O.S. No.272 of 1992 allowing the counter claim as prayed for and directing the appellants/plaintiffs (first plaintiff died after disposal of the first appeal and plaintiffs 2 to 4 are her legal representatives) to construct retaining wall upto the level of property of first respondent-second defendant at their expense as conceded in the plaint and allowing the second defendant to construct boundary wall above the retaining wall at his expense through court as per Ext.A4, report and the plan appended to it. Judgment and decree of the trial court were confirmed by the learned First Additional District Judge, Thiruvananthapuram in A.S. No.92 of 1996. That judgment and decree are under challenge.
Plaintiffs, along with the deceased first plaintiff filed the suit claiming that plaint A to C schedules belong to them and that property on the east belonged to the first defendant. Suit property lies at a lower level from the adjacent property. First defendant filed O.S. No.187 of 1985 against the deceased first plaintiff seeking to put up a rubble wall on the boundary. Advocate Commissioner appointed in that case reported that construction of rubble wall will affect the safety of first plaintiff and others. That suit was dismissed for default. First plaintiff alleged that second defendant and other defendants are trying to construct a boundary wall which is unsafe and it caused danger to his life and property.
Defendants 1, 3 and 4 remained ex parte. Second defendant filed written statement and counter claim. He claimed that first defendant settled the property on the east of the suit property to him as per document No.3580 of 1991. He contended that properties are sloping from east to west. First defendant filed O.S. No.187 of 1985 when plaintiffs started to remove soil from their property and since plaintiffs had agreed to construct a retaining wall, first defendant did not pursue the suit filed by him (O.S. No.87 of 1985). Second defendant claimed that plaintiffs are bound to construct retaining wall and prayed that second defendant may be allowed to construct compound wall above that retaining wall. A counter claim was also made paying court fee but without scheduling the property of second defendant where according to him, plaintiffs are to construct retaining wall.
When the case was called on 05.09.1994 for plaintiffs to file objection to the counter claim of second defendant, they remained absent and there was no representation. Hence the suit was dismissed for default and the counter claim was posted for evidence. Thereafter, 2nd plaintiff filed objection to the counter claim on 23.09.1994 on behalf of all the plaintiffs. Since the suit was dismissed for default, learned Munsiff raised issues on the counter claim and proceeded with trial of the counter claim. P.W.1 and D.W.1 were examined and Exts.A1 to A4 and B1 were marked. Exhibit A4 is the copy of commission report and plan in O.S. No.187 of 1985. Based on the said evidence and holding that first plaintiff has made admissions in O.S. No.187 of 1985, trial court granted a decree on the counter claim directing the plaintiffs to construct retaining wall upto the level of property of the second defendant at their expenses "as conceded in the plaint" and second defendant was allowed to construct boundary wall above the retaining wall at his expense through court as per Ext.A4, report and plan appended to it.
Plaintiffs challenged that judgment and decree in A.S. No.92 of 1996. Learned District Judge confirmed the judgment and decree of the trial court and dismissed the appeal.
It is contended by learned counsel for plaintiffs that decree on the counter claim cannot stand for various reasons. It is pointed out that counter claim has to be treated as a cross suit as provided in Rule 6A (2) of Order VIII of the CPC (for short, "the Code") and if so, the counter claim should have all the trappings of a plaint. It is pointed out that under Rule 3 of Order VII of the Code when a suit concerns immovable property the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In the counter claim no schedule of property (of the second respondent) is incorporated. It is also pointed out that the prayer in the counter claim is that the court may be pleased to decree the suit allowing the prayer in paragraph 7 of the counter claim (In paragraph 7 of the counter claim it is stated that prayer (a) in the plaint is not at all a proper solution for deciding the question in controversy and that it is not allowable and appellants should be directed to construct retaining wall upto the level of property of the second defendant at their expense "as conceded in paragraph 10 of the plaint" and second defendant is to be allowed to construct boundary wall above the retaining wall at his expense through court. It is further stated in paragraph 7 that the said prayer can be allowed as prayer (b) in the plaint or that the prayer may be considered as a counter claim). It is also contended by the learned counsel that the trial and first appellate courts went wrong in taking the view that plaintiffs have conceded in the plaint that they would construct retaining wall at their expense from the ground level of their property upto the surface level of property of second defendant. It is explained by the learned counsel that what plaintiffs stated in paragraph 10 of the plaint is only that they have no objection in defendants constructing retaining wall in their property and that the said statement should not have been construed as an admission by the plaintiffs that they would construct retaining wall in the property of second respondent at their expense.
In response it is contended by the learned counsel for second defendant that though a schedule of the property of second defendant is not incorporated in the counter claim, since Ext.A4, report and plan (in O.S. No.187 of 1985) are appended to the decree, that is sufficient compliance with Rule 3 of Order 7. It is contended that though the ultimate prayer in the counter claim is inartistically stated as that the suit may be decreed allowing the prayer in paragraph 7 of the counter claim, it is clear that relief prayed for in the counter claim is in the nature of relief (b) in the plaint.
Though I had called for records of the case, it has not reached this Court. I am given a copy of the plaint, counter claim and decree on the counter claim. It is agreed by counsel on both sides that for a decision of the first substantial question of law framed, it is not necessary to wait for the entire lower court records and that this Court could refer to the plaint, counter claim and decree on the counter claim and decide the said substantial question of law. Hence I am not waiting for the entire records as it will only further delay the matter.
It is not very much in dispute that property of plaintiffs is lying at a lower lever from the property of second defendant. Deceased first defendant filed O.S. No.187 of 1985 against the deceased first plaintiff. Whatever be the reason thereof, that suit was not pursued. In the present suit second defendant claimed title under the first defendant and has set up the counter claim. In paragraph 5 of the counter claim it is stated that even getting an order of injunction (in O.S. No.272 of 1992) plaintiffs removed soil not only from their property but also from the property of second defendant and that plaintiffs are not constructing the retaining wall as agreed, nor allowing the second defendant to construct compound wall above the retaining wall. Therefore it would appear that the cause of action for the counter claim includes the alleged removal of soil by the plaintiffs from their property and allegedly from the property of second defendant even after filing the present suit. Courts below found that counter claim is not barred by res judiciata. I do not find reason to interfere with the finding of the courts below that the counter claim is not barred by res judicta.
The suit was dismissed for default on 05.09.1994. No attempt was made to resurrect the suit for whatever reason it be and thus dismissal of the suit on 05.09.1994 has become final.
Having heard learned counsel on both sides I am inclined to think that the ultimate decision on the counter claim needs interference. When the suit is dismissed for default and that dismissal has attained finality, the schedule of property referred to in the plaint at any rate cannot be made use of for any purpose. The counter claim has to stand on its own, is to be treated as a cross suit and it must have all the trappings of a plaint. The counter claim should contain a schedule of property in respect of which relief is claimed. It is no argument that Ext.A4, report and plain in the previous suit are appended to the decree. Unfortunately, the counter claim does not contain a schedule of property of the second defendant regarding which relief is sought and which is the subject matter of counter claim. I also find that proper reliefs are not prayed for in the counter claim. Prayer refers to in paragraph 7 of the counter claim which again refers to the reliefs prayed for in the suit. The suit was dismissed for default and that attained finality.
There is dispute between the parties whether plaintiffs have admitted in the plaint that "they" are willing to construct retaining wall on the side of their property from the surface level of their property upto the surface level of property of the second defendant. Counsel on both sides invited my attention to paragraph 10 of the plaint to buttress their contentions. I do not intend in this appeal to make any interpretation of the averments in paragraph 10 of plaint or any other averment in the plaint to say whether or not there is any admission by the plaintiffs. That is a matter which the trial court has to decide.
Having heard counsel on both sides, it is my view that the counter claim has to go back to the trial court for fresh decision after defects are cured. Both sides will get opportunity to amend their pleadings (counter claim and replication) and adduce further evidence. Substantial question No.1 is answered as above. Whether property of second defendant is entitled to get lateral support shall be declared by the trial court.
The Second Appeal is allowed by way of remand as under:
(i) Judgment and decree of learned Additional District Judge, Thiruvananthapuram in A.S. No.92 of 1996 and of learned First Additional Munsiff, Thiruvananthapuram in O.S. No.272 of 1992 on the counter claim are set aside.
(ii) Counter claim in O.S. No.272 of 1992 is remitted to the trial court for fresh decision in the light of the observations made above after giving opportunity to amend the counter claim and replication or file additional replication as the case may be and to adduce further evidence if any in the matter Learned Additional Munsiff shall dispose of the counter claim as early as possible giving it top priority.
Parties are directed to appear in the court of learned First Additional Munsiff, Thiruvananthapuram on 13.04.2012.
All pending Interlocutory Applications will stand dismissed