Chinnammal vs Athiyannan

B. Rajendran, J.—The Plaintiffs in O.S. No.242 of 2009 on the file of the learned Additional District Munsif, Tiruchengode are the Appellants in this Second Appeal The Plaintiffs have instituted the Suit for a bare injunction to restrain the Defendants/Respondents herein and their men from in any way interfering with their peaceful possession and enjoyment of the Suit property. The Suit is pending. Pending Suit, the Plaintiffs have filed I.A. No.390 of 2013 in O.S. No. 242 of 2009 under Order 7, Rule 11, read with Section 151 of C.P.C. praying to reject the Counter-claim made by the Respondents Defendants. The said Application in I.A. No.390 of 2013 was allowed by the Trial Court on 26.7.2013. As against the same, the defendants Respondents herein have filed A.S. No.20 of 2013 before the Sub-Court, Tinichengode, which was allowed on 18.3.2014. The present Second Appeal is filed against the Order dated 18.3.2014 passed in A.S. No. 20 of 2013.

According to the Plaintiffs, the Second and Third Plaintiffs are the son and daughter of the First Plaintiff The Suit property is the ancestral property of the Plaintiffs The Suit property along with other properties have been purchased by the paternal grandfather of the Second and Third Plaintiffs namely Sengoda Gounder, son of Samy Gounder on 4.5.1964 under a registered Sale Deed. The said Sengoda Gounder had three sons namely Chinnana Gounder, Chettikumara Gounder and Late. Samy Gounder Samy Gounder is the father of the second and Third Plaintiffs and husband of the First Plaintiff. After the demise of Sengoda Gounder, his sons had partitioned their properties including the Suit properties by means of a registered Partition Deed dated 16.7.1982 by which the Suit property was allotted to the Second Plaintiff and his deceased father Samy Gounder. The Suit property was morefully described as Schedule "D" in the Partition Deed dated 16.7.1982 From the said date, the Second Plaintiff along with Ins father late. Samy Gounder were in possession and enjoyment of the Suit property. On 16.12.1995, Samy Gounder died leaving behind the Plaintiffs as his Legal Hens. The Plaintiffs also mutated their name in the Revenue records in respect of the Suit property and they are paying kist and other taxes to the Authorities concerned. While so, the Defendants, who are having then'' lands on the eastern side of the Suit property, without any right, Authority or interest attempted to interfere with the Suit, property On 28.2.2009, the Plaintiffs have given a Complaint to the Pallipalayam Police Station complaining illegal attempt made by the Defendants to trespass into the Suit property. As no action has been taken on the basis of the said Complaint. The Plaintiffs have filed the Suit.

The Defendants resisted the Suit by filing a Written Statement on 29.10.2009. According to the Defendants, the Plaintiffs have suppressed the existence of a cart track on the Southern side of the land in Survey No.119/2A of Southapuram Village, Tiruchengode Taluk. The said cart track is in existence for more than 72 years. The Plaintiffs cannot assert exclusive right, over the entire extent of the Suit property. The Plaintiffs cannot claim any right over the cart track measuring 15 feet links naming East to West, The existence of cart track is also indicated in the Registered Partition Deed dated 16.7.1982. The Defendants are not strangers to the Suit property The father of the First Defendant-Paramu Gounder purchased the land in Survey No.119/2B an extent of 1.90 cents from Palam Gounder, son of Sellappa Gounder by a Sale Deed dated 10.8.1948. After the death of Paramu Gounder, his son Atluyniman and grand sons, who are Defendants 2 & 3 herein, have absolute right, title and interest over the cart track mentioned above. The Defendants have easmentary right to the cart track in existence without which they could not reach their property. Therefore, the Defendants raised a Counter-claim in respect of the cart track measuring six cubic feet (15 links) width running West to East on the Southern side of the land in Survey No. 119/2A2 and also paid the requisite Court-fee. Therefore, the Defendants, in then Written Statement, prayed for dismissal of the Suit inter aha to grant a Decree in their favour by way of Counter-claim in respect of the cart track running West to East on the southern side of the Suit property.

On 5.4.2013, the Plaintiffs have filed the instant application in I.A. No.390 of 2013 in O.S No. 242 of 2009 under Order 7, Rule 11, read with Section 151 of C.P.C. praying to reject the Counter-claim made by the Respondents/Defendants The said application was filed on the sole ground that, in the Counter-claim, the Defendants have not disclosed the cause of action for raising such Counter-claim. According to the Plaintiffs, when a Counter-claim has to be treated as Plaint, the plea raised in the Written Statement by setting a Counter-claim, without there being a cause of action, has to be rejected. For this application, the Defendants have also filed their Counter-Affidavit.

The Trial Court, after considering the rival contentions, concluded that technically, an Application under Order 7, Rule 11 of C.P.C. applies to a Counter-claim also. As required for a Plaint to disclose a cause of action, the Defendants, in their Written Statement, ought to have specifically mentioned the date on which a cause of action has arisen for making a Counter-claim. In the absence of any such specific plea, the Counter-claim raised by the Defendants cannot be countenanced. Accordingly, the Trial Court allowed the Application filed by the Plaintiffs/Appellants and rejected the Counter-Claim.

The Appellate Court, however, reversed the fair and Decretal Order passed by the Trial Court in I.A No.390 of 2013 by holding that even though specific cause of action has not been disclosed in the Counter-claim, the Court can infer the date of cause of action for the Counter-claim as the date of filing of the Suit by the Plaintiff.

The learned Counsel appearing for the Appellant would contend that the First Appellate Court erred in reversing the Order passed by the Trial Court According to the learned Counsel for the Appellant, the Counterclaim should also be treated as Plaint and all the ingredients required for the Plaint should also be made available for the Counter-claim, including a cause of action thereof and in the absence of the same, the plea of Counterclaim made by the Defendants/Respondents cannot be countenanced The Order passed by the First Appellate Court is contrary to the provisions of Older 7, Rule 11 of C.P.C The Defendants/Respondents are bound to set out the cause of action arisen for raising a Counter-claim in clear terms and in its absence, the First Appellate Court ought not to have entertained the Appeal. In this context, the learned Counsel for the Appellants relied on the decision of the Honourable Supreme Court in the case of Curch of Christ Charitable Trust and Educational Charitable Society, rep. by its Chairman v. Ponniamman Educational Trust, rep. by its Chairperson Managing Director, 2012 (4) CTC 308 (SC) : 2012 (8) SCC 706, to contend that the Defendants,"Respondents are under an obligation to disclose the cause of action to raise a Counter-claim and in its absence the plea of Counter-claim raised has to be rejected

The learned Counsel for the Appellants also relied on the decision of the Honourable Supreme Court in the case of Om Prakash Srivatsava v. Union of India, 2006 (6) SCC 297, to contend that it is well settled law that cause of action" consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a Court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the Plaintiff a right to claim relief against the Defendant. It must include some act done by the Defendants since in the absence of such an act, no cause of action would possibly accrue or would arise.

I heard the learned Counsel for the Appellants and perused the materials placed on record Having regard to the submissions made on behalf of the Appellants, the only question of law which arise for consideration in this Second Appeal is as to "whether the Defendants/Respondents have raised the Counter-claim without there being a cause of action and the First Appellate Court is right in entertaining such Counter-claim.

On careful perusal of the pleadings as well as the Orders passed by the Courts below, it could be seen that the Plaintiffs have instituted the Suit in the year 2009 The Defendants have immediately filed their Written Statement. In such Written Statement, the Defendants have also raised a Counter-claim with respect to the alleged cart track forming part of the Suit property. It is the specific case of the Defendants that the Plaintiffs have suppressed the existence of cart track. It is also claimed that the existing cart track is the only access to the Defendants/Respondents to reach their property situate adjacent it to the Suit property While so, if the relief of bare injunction sought for by the Plaintiff is granted, it will adversely affect their easmentary right to have access to their property. Therefore, the Defendants have raised a Counter-claim in the Written Statement and they have also paid necessary Court-fee for raising such a Counter-claim. In and by the Counter-claim" the Defendants have prayed to grant a Decree in their favour by way of Counter-claim in respect of the cart track running West to East on the southern side of the Suit property. After filing such a Written Statement, inter alia raising a Counter-claim, the Plaintiffs remained silent for about four years and thereafter they have filed the instant Application to reject the Counter-claim during the year 2013 especially when the Suit was posted for trial. In the Application in I.A. No. 390 of 2013 in O.S. No. 242 of 2009 under Order 7, Rule 11, read with Section 151 of C.P.C., the Plaintiffs prayed for rejecting such Counter-claim raised by the Defendants only on the ground that there is no specific cause of action disclosed for raising such a plea for Counter-claim.

The first Appellate Court, in its Order, placed reliance to Order 8, Rule 6-A of C.P.C. to conclude that a Defendant, in a Suit may, in addition to his right of pleading a set off under Rule 6, by way of Counter-claim against the claim of the Plaintiff raise any right or claim in respect of a cause of action accruing to the Defendants against the Plaintiffs either before or after the filing of the Suit. In the present case, soon after the Plaint was filed by the Plaintiffs, they have tiled the Written Statement in which they have also claimed a Counter-claim Therefore, it was held by the First Appellate Court that the plea of Counter-claim was raised at the earliest point of time after filing of the Suit and therefore, such a plea can be entertained.

As regards the cause of action for raising a Counter-claim, even in the decision relied on by the learned Counsel for the Appellants in the case of Om Prakash Srivastava mentioned supra, it was held by the Honourable Supreme Court that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a Court of law. In the present case, according to the Defendants, in the Plaint, the Plaintiffs have suppressed the existence of the cart track winch gives them access to reach their property and therefore, if the Suit instituted by the Plaintiffs for bare injunction is granted, it will adversely affect then easmentaly right. Therefore, according to the Defendants/Respondents, the very Suit instituted by the Plaintiffs has given rise to a cause of action for them to make a Counter-claim Even though the Defendants/Respondents have not specifically indicated any date on which a cause for their action arisen to raise a Counter-claim, it could be seen that the Suit filed by the Plaintiffs itself has given rise to a cause of action in their favour which necessitated them to raise a plea of Counter-claim. Therefore, merely because the Defendants,''Respondents did not indicate in their Written Statement a specific date on which a cause of action has arisen in their favour, the plea of Counter-claim raised by them cannot be rejected. This is more so that it was specifically mentioned that the Suit instituted by the Plaintiff has necessitated them to make a plea for Counter-claim.

It is seen from the Written Statement that the Defendants/Respondents lave narrated all the facts by which they could assert a right over the cart track forming part and parcel of the Suit property. Such Written Statement filed by the Plaintiffs can also be treated as a Plaint especially when the Defendants/Respondents have paid Court-fee thereof. Such narration of facts could be construed as a bundle of facts, as held by the Honourable Supreme Court in the decision rendered in Om Prakash Srivastava case mentioned supra and in such event the validity or otherwise of such plea raised by the Defendants/Respondents can only be gone into during the course of trial and the rejection of the plea for Counter-claim by the Trial Court is not proper. In this context, it would be relevant to reproduce Para Nos. 12, 13 of the decision rendered in Om Prakash Srivastava case mentioned supra wherein the Honourable Supreme Court held as follows:

"12 The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense. "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the Suit, including not only the infraction of the light, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every facts, which it would be necessary for the Plaintiff to prove. If traversed, in order to support his right to the Judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises a "cause of action". (See Rajasthan High Court Advocates Association v. Union of India)

The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the while bundle of material facts, which a Plaintiff must prove in order to succeed. These are all those essential facts without the proof of which die Plaintiff must fail in His Suit (See Gurdit Singh v. Munsha Singh)

If the ratio laid down by the Honourable Supreme Court in the above decision is applied to this case, the Defendants have raised a Counter-claim and in support thereof, they hare narrated certain facts, which could be construed as a "bundle of facts" which has to be disproved by the Plaintiffs during the course of trial. In such circumstances, the Application filed by the Plaintiffs to reject the plea of Counter-claim raised by the Defendants in the Written Statement, on the ground that it did not disclose a cause of action, was rightly rejected by the First Appellate Court Consequently, I hold that the only question of law raised in this Second Appeal has to be answered against the Plaintiff/Appellants and accordingly it is answered.

At the stage, the learned Counsel appearing for the Plaintiffs/Appellants prayed this Court to grant liberty to the Plaintiffs to file their Reply to the plea of set off raised by the Defendants/Respondents Such a submission made by the learned Counsel for the Plaintiffs/Appellants is justifiable inasmuch as the Plaintiffs, soon after the filing of the Written Statement raising a Counter-claim, did not file any reply, rather filed the Application under Order 7 Rule 11 of C.P.C. to reject the Counter-claim Therefore, it is made clear that the Plaintiffs are at liberty to file then reply to the Counter-claim raised by the Defendants/Respondents.

In the result, the Second Appeal fails and it is dismissed. No costs Consequently, connected Miscellaneous Petition is closed.