Kalimuthu vs A.S.A.R. Kalairaja Chettiyar

K. Ravichandrabaabu, J.—This Civil Revision Petition is filed against an order made in E.A. No. 14 of 2010 in E.P. No. 62 of 2008 in O.S.

No. 90 of 1982 on the file of the Sub Court, Nagapattinam, wherein and whereby the Court below has rejected the said application filed by the

petitioner seeking permission for filing additional counter in the execution petition. Though notice was served on the respondent, he has not chosen

to appear before this Court either in person or through counsel. However, his name is printed in the cause list. Heard the learned counsel for the

petitioner.

The petitioner is aggrieved against the order passed by the Court below in rejecting his application seeking permission to file additional counter

in the execution petition. The petitioner is the 15th respondent in the execution petition. The petitioner wanted to file an additional counter affidavit

in order to bring out certain facts about the sale of the properties mentioned in the execution petition to third parties by the plaintiff. According to

the petitioner, the said facts are crucial for deciding the main execution petition. The Court below has rejected the said application by observing

that the petitioner being the 15th respondent, had in fact not filed any counter and therefore in the absence of any counter filed by him earlier, there

is no question of permitting him to file additional counter affidavit. It is also further observed by the Court below that when the matter was posted

for arguments, the present application filed is not maintainable without getting the matter reopened. The Court below has also gone into the merits

of the contentions raised in the additional counter and found that such contentions cannot be permitted to be raised by the petitioner.

On the other hand, the learned counsel appearing for the petitioner submitted that the petitioner had filed counter before the Court below during

the month of August 2007 itself and also placed copy of the same in the typed set of papers. Therefore, the learned counsel submitted that the

finding rendered by the Court below in this aspect is factually incorrect.

Whether the counter was filed or not by the petitioner at the initial stage is a factual aspect of the matter. Only the Court below could look into

it. But the finding rendered by the learned Judge shows that counter has not been filed by the petitioner in view of the specific endorsement made

on 24.3.2009. Therefore, this Court cannot take into consideration of the submission made by the learned counsel for the petitioner as if the

counter was filed in the month of August 2007 itself. But at the same time, even in the absence of a counter, whether the petitioner is to be

permitted to file a counter now is a question to be decided in this case.

It is not as if the E.P. itself is disposed of. As found by the Court below it is pending at the stage of arguments. According to the petitioner he

would like to place certain facts with regard to the sale of the suit properties, which are the subject matter in the execution petition, by the plaintiff

to some third parties. Certainly such facts are relevant for the executing Court to consider and pass necessary orders in the execution petition.

Mere filing of the counter affidavit certainly cannot be taken to mean that all the contentions stated therein are to be accepted as true statements. In

fact, the Court below has also noted that the petitioner in order to prove such sale, he could very well file certified copies of the sale deeds during

the course of his arguments by filing petition to receive documents. Therefore, when the Court is of the view that the petitioner could file those

documents by filing appropriate petition to receive the same during the course of arguments, nothing wrong in permitting him to make a pleading by

way of counter to explain about those documents which are sought to be marked by him. Therefore, in my considered view, the petitioner can be

permitted to file the counter affidavit, even though it is termed as additional counter affidavit. Accordingly, I find that the reasoning given by the

Court below in rejecting the application is not just and proper. Consequently, the order of the Court below is set aside and the petitioner is

permitted to file counter affidavit. Since the suit is of the year 1982 and the E.P. is of the year 2008, the Court below is directed to dispose of the

E.P. within a period of two months from the date of receipt of copy of this order. Accordingly the Civil Revision Petition is allowed. Consequently,

the connected M.P. is closed. No costs.