High Court dismissed revision petitions challenging orders allowing amendments to a counter-claim and dismissing a petition for framing additional issues. The Court held the primary petition became infructuous after the amendments were permitted.
Revision petitions dismissed with a cost of Rs. 500/-. Connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.P.(MD).No.12384 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.03.2019 PRONOUNCED ON : 12.07.2019
CORAM
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM CRP(MD).Nos.2855 to 2857 of 2018(PD) and C.M.P.(MD).No.12384 of 2018 in C.R.P.(MD).No.2855 of 2018
C.R.P.(MD).No.2855 of 2018
A.Raja Mohamed ... Petitioner/Petitioner/Plaintiff
Vs.
Bhadurnisha Begum ... Respondent/Respondent/Defendant
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 02.11.2018 made in I.A.No.300 of 2018 in O.S.No.13 of 2009 on the file of the District Munsif cum Judicial Magistrate Court, Kodaikanal.
C.R.P.(MD).No.2856 of 2018
A.Raja Mohamed ... Petitioner/Respondent/Plaintiff
Vs.
Bhadurnisha Begum ... Respondent/Petitioner/Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 31.10.2018 made in I.A.No.322 of 2018 in O.S.No.13 of 2009 on the file of the District Munsif cum Judicial Magistrate Court, Kodaikanal.
C.R.P.(MD).No.2857 of 2018
A.Raja Mohamed ... Petitioner/Respondent/Plaintiff
Vs.
Bhadurnisha Begum https://hcservices.ecourts.gov.in/hcservices/
...Respondent/Petitioner/first Defendant
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PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 31.10.2018 made in I.A.No.324 of 2018 in O.S.No.13 of 2009 on the file of the District Munsif cum Judicial Magistrate Court, Kodaikanal.
For Petitioner in all cases : Mr.Mahaboob Athiff, for M/s.Ajmal Associates
For Respondent in all cases : Mr.I.Sam Jegan
COMMON ORDER
These Civil Revision Petitions have been preferred against the fair and decreetal order passed by the District Munsif cum Judicial Magistrate Court, Kodaikanal, in I.A.No.300 of 2018 dated 02.11.2018 and I.A.Nos.322 of 2018 and 324 of 2018, dated 31.10.2018.
2.The revision petitioner herein is the plaintiff and he has filed a petition in I.A.No.300 of 2018 for framing additional issues.
3.In the said I.A., the plaintiff has contended that he has filed a suit in O.S.No.13 of 2009 for permanent injunction restraining the respondent/defendant from in any way preventing him from using the suit schedule property as a pathway. In the said case, the first defendant has filed written statement and the case was pending for nearly 6 years. In the said written statement, the first defendant has not stated that he may make any counter claim in future. In the said suit, issues were framed on 23.06.2016. Thereafter, the first defendant has filed a counter claim and the same was taken on file by the Court on 30.07.2018 and subsequently, it was adjourned from time to time. The plaintiff has filed his written statement to the counter claim. It was the contention of the plaintiff before the trial Court that without making any mention in the written statement as to the counter claim and after framing of issues, filing of the counter claim is against the provisions of law. The plaintiff has contended that in the counter claim the details of the suit property has not been given with proper identification and in view of filing of the said counter claim after framing of issues, specific issues have to be framed. In view of the belated filing of the counter claim, without mentioning anything about the same in the written statement, the said petition is liable to be allowed and three issues have to be framed. Unless the said issues have been framed, based on the counter claim, the petitioner will be put to lot of inconvenience and hardship. Hence, additional issues have to be framed and the case has to be proceeded. https://hcservices.ecourts.gov.in/hcservices/
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Therefore, the plaintiff has filed the said I.A.No.300 of 2018 for framing of additional issues and the said issues to be framed are also stated by the petitioner, which reads as under:
(i).kDjhh; / thjp jhf;fy; bra;Js;s vjph;ciuapy; gpujpthjp / vjph;nfhUhpikfis jhd; thjpapd; gpuhJf;F vjpuhf jhf;fy; bra;j vGj;JKykhd vjph;tHf;Fiufis vjph;nfhUhpik jhf;fy; bra;tJ rk;ke;jkhf ve;jtpj thh;j;ija [k ; brhy;yky; gpd;dpl;L fhyk; fle;j vjph;nfhUhpik kD jhf;fy; bra;jpUg;gJ rp.gp.rp fl;lis kw;Wk; tpjpg;gpo jilbra;ag;gl;Ls;shuh?
(ii).gpujpthjp/vjph;nfhUhpikahsh; vjph;nfhUhpik kDtpy; brhj;J tpguq;fs; jdpg;gl;L brhy;yhkYk; brhy;yg;gl;l brhj;J tpguq;fs; milahsk; ,y;iy vd;w (Not sufficient to identity) tifapy; vjph;nfhUhpik jhf;fy; bra;jpUg;gJ rp.gp.rp fl;lis kw;Wk; tpjpapd;go js;Sgo bra;af;Toajh? (iii)gpujpthjp/vjph;nfhUhpilahsh; jhf;fy; bra;a [k ; kDtpy; brhj;jkjpg;gPl;il fzf;fpl;L ve;j gphptpd; fPH; ghpfhuq;fs; nfl;fpwhh; vd;W jdpj;jdpahfnth my;yJ bjspthfnth ,y;yhky; xd;Wf;bfhd;W FHg;g [k ; tpjj;jpy; vjph;nfhUhpik kDtpy; Fwpg;gpl;Lssjhy; vjph;nfhUhpik kD rp.gp.rp Mh;lh; tpjpfspd;go vjph;nfhUhpik kD js;Sgo bra;ag;gl ntz;oajh?
4.According to the defendant, the counter claim is like that of a separate suit of the defendant as against the plaintiff. In order to avoid multiplicity of proceedings, the provision for counter claim has been given in law. At the same time, it does not mandate that the defendant shall have to speak about the counter claim in his written statement. No prior notice is mandatory before filing of counter claim. The said counter claim was presented on 23.07.2015 and the counsel for the plaintiff has received the copy of the counter claim on 23.07.2015, the petitioner cannot claim that the counter claim was filed after the issues were framed on 23.03.2016. The counter claim was filed prior to the framing of issues in the above suit. Hence, there is no fault on the part of the defendant in filing the counter claim. The property, which is the subject matter of counter claim is a road paved by the plaintiff by encroaching the defendant's property. Regarding the encroachment, the defendant has made a detailed version in his written statement that the encroachment of plaintiff has caused damage to his cultivation and paving of road by the plaintiff by using JCB. So, the illegally paved road is the subject matter of the defendant's counter claim. The said road can also be seen by naked eye. Further, correct Survey Number and the extent has also given in the counter claim and there is no difficulty in identifying the property. Therefore, the contention of the plaintiff that sufficient identification is not, which is not a proper one. The prayer in the counter claim itself has contained the description of property and if at all any discrepancy is found, it can be added by way of amendment and additional issues need not be framed and evidence on that issue can be recorded yet.
5.Regarding the omission of mentioning of exact provision for payment of Court Fee, it is the contention of the defendant that it is only due to typographical error and the same can be worked out https://hcservices.ecourts.gov.in/hcservices/
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and cured, by paying the proper Court fee under Section 25(a) of the Tamil Nadu Court Fees and Suit Valuation Act, by way of correction. But the said provision was omitted due to typographical mistake. Hence, the wrong quoting of provision of law and omission of mentioning the correct provision of law is not a flaw and hence, that can be cured by amending the same. Hence, three additional issues stated in the petition are not warranted and they are all unnecessary and this petition is filed only to drag on the proceedings and also to defeat the High Court's direction for a speedy disposal. Upon considering the above rival claims, the trial Court passed the following order;
“This petition is filed under Order 14 Rule 1 and Section 151 of CPC and Rule 71 of Civil Rules of Practice prayed that to frame the additional issues.
On perusal of this petition that the petitioner filed this petition to frame additional issues for necessary to decide the dispute between the party. On the other hand the respondent has filed a counter and he also filed a petition under Order 6 Rule 17 of CPC to amend the counter claim and the same was taken on file. I.A.No.324 of 2018, the respondent has not filed counter. Hence, the respondent set exparte. Therefore, I.A.No.324/18 is allowed. In such circumstances that the petitioner has made certain omission in the counter claim was rectified by the defendant by way of amendment. Considering the same this petition is dismissed as infractuous.
In the result this petition is dismissed as infracturous. No costs.”
6.The respondent herein, who is the first defendant filed I.A.No.324 of 2018 to amend the counter claim in the above suit filed by the plaintiff. In the affidavit filed in support of the said petition, the first defendant has stated that there are some typographical mistakes and omission in the counter claim and due to oversight, it was not noticed at an earlier point of time. The said mistake and omission were found by the learned counsel of the first defendant, when her counsel read the written statement of the plaintiff in her counter claim and also on reading the pleadings of the plaintiff in his petition (I.A.No.300 of 2018) and affidavit seeking for inclusion of additional issues. The petitioner/first defendant has further stated that in his counter claim in Para 5, she has described the valuation and Court fee and the Court fee is also properly paid for the relief of declaration and recovery of possession, but by oversight, it is omitted to be stated as “for the relief of declaration and recovery of vacant possession”. It is further stated that in the counter claim though value of the counter claim is stated as Rs.5,756.75/-, thereafter it is entitled to state as “under Section 25(a) of the Tamilnadu Court Fees Act”. Therefore, according to first defendant, the above facts have to be added in the counter claim.
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7.It is further contended by the first defendant that she has given the survey number and the extent of the property claimed, but, the same was objected by the plaintiff stating that the description of the property has not been given separately. The said omission was occurred only under the impression that the description is available in the prayer itself and therefore, in order to pass effective decree and judgment, the said description of property as described in the particulars of amendment has to be added in the counter claim. The said amendments and the adding of description of property will not in any way amount to change the nature of the counter claim and no new case is introduced by way of amendment. The value of the claim viz., declaration and recovery of vacant possession and the amount of Court Fee paid are mentioned and already paid in the counter claim. The extent of property claimed and the survey number are given in the prayer of counter claim. Hence, the respondent/plaintiff will not be prejudiced in any way, in case of the said amendments. It is further stated that the petitioner/first defendant has filed the counter claim on 23.07.2015 and the respondent/plaintiff has filed the written statement to the counter claim on 27.08.2018 and since the issues on counter claim has been framed, therefore, the said amendment sought by the petitioner/first defendant is very much essential and hence, the said petition filed for permitting the first defendant to amend the counter claim is required to be allowed.
8.The trial Court, after observing the contention raised by the petitioner/first defendant regarding the particulars of amendment sought in the petition, passed the order, which runs as follows: “ Order 06.10.2018: Notice of hearing given. For counter call on 06.10.2018. (Int.)M.K./D.M. 08.10.2018: Counter at request call on 10.10.2018. Final. (Int.) M.K/D.M. 10.10.2018: Respondent called absent. No representation. sufficient time given. But the respondent has not turned up. Hence, the respondent set exparte. For enquiry. Call on 11.10.2018. (Int.) M.K./D.M. 11.10.2018: Petitioner called absent. No representation. Sufficient time given. But the petitioner has not turned up. Hence, this petition is dismissed for default.(Int.) M.K./D.M. 29.10.2018: As per the order posted in I.A.No.346 of 2018, this petition is restored. Petitioner side inquiry heard. For orders. Call on 30.10.2018. (Int.) M.K/D.M. 30.10.2018: Petition under Order 9 Rule 7 of CPC filed and pending. Call on 31.10.2018.(Int.)M.K/D.M. 31.10.2018: Petition under Order 9 Rule 7 of CPC returned. Heard. On perusal of this petition that the https://hcservices.ecourts.gov.in/hcservices/ petitioner filed this petition to amend the counter
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claim. The petitioner has adduced sufficient reasons to allow this petition.
On the other hand, the respondent has not turned up. Considering the same, the Hon'ble Supreme Court laid down a dictum stating that pre trial amendment can be done. Hence, this petition is deserved to be allowed. In the result, this petition is allowed.”
9.From the above, it becomes clear that in the said I.A., notice was given for filling counter and sufficient time was given by the trial Court. But, the plaintiff did appear on the adjourned dates and therefore, he was called absent and set exparte and on the subsequent hearings also, the petitioner was called absent and there was no representation. On 31.10.2018, the trial Court has ordered the petition filed under Order 9 Rule 7 of C.P.C., observing that the petitioner/first defendant has given sufficient reasons to allow the petition, but on the other hand, the respondent/plaintiff has not turned up to contest the same. Quoting the law settled by the Supreme Court that pre-trial amendment can be done, the trial Court allowed I.A.No.324 of 2018. Challenging the same, the respondent/plaintiff has filed C.R.P.(MD).No.2857 of 2018.
10.I.A.No.322 of 2018 was filed by the first defendant. In the affidavit, the first defendant has stated that the respondent/plaintiff filed a suit for injunction in which, she has filed a counter claim and the respondent has also filed his written statement. In order to avoid any other technical flaw, the petitioner/first defendant has filed the reply statement on 29.08.2018 and the said reply statement was returned for the reason that the same has to be filed along with petition seeking leave of the Court. In his written statement filed in the counter claim, the plaintiff has raised some points and the same have to be clarified by way of reply statement. Hence, the first defendant sought for filing this petition to grant leave permitting her to file a reply statement. According to the first defendant since certain points were raised by the plaintiff, unless the reply statement is received, she will be put to irreparable loss. The respondent/plaintiff did not appear and file any counter. The trial Court by order dated 31.10.2018 by observing that the petition filed by the plaintiff under Order 9 Rule 7 C.P.C., has been returned, passed the following order:
“ Order
This petition is filed under Section 151 of CPC prayed that to file the reply statement.
On perusal of this petition that the petitioner filed this petition to receive reply statement on this side. The petitioner has adduced sufficient reasons to allow this petition. On the other hand, the respondent has not turned up to denied the same. Considering the same, the petition is deserved to be allowed.
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In the result, this petition is allowed. No costs.”
11.In the grounds, the revision petitioner/plaintiff has contended that the Court below ought to have allowed the application filed by him for framing additional issues in the interest of justice and by framing the additional issues, no prejudice will be caused to the respondent/first defendant. The framing of additional issues is absolutely necessary to show the material proposition of law and the facts asserted by one party and denied by the other party can be clearly stated in the additional issues and the said additional issues will be helpful to the Court to arrive at a correct conclusion in the main suit. It is further contended that even if the amendment of the counter claim is allowed, even then, the presence of additional issues does not lose its legal significance.
12.The other grievance raised by the revision petitioner is that in respect of the amendment petition filed by the first defendant in the counter claim, the Court below should have waited for the disposal of an unnumbered petition filed under Order IX Rule 7 of C.P.C., in I.A.No.322 of 2018 and I.A.No.324 of 2018. The Court below having returned the Order IX Rule 7 of C.P.C., application, cannot be allowed to act with undue haste and dismissed the application filed for framing additional issues. When an application is returned, the Court ought to have given time to the petitioner to represent the application and correct the same or explain the returns made in the said application and to say that the application is perfectly in order and re-present the same. When the said application is returned for rectification of errors, the Court below cannot dispose of the other connected application on the same day.
13.The other grievance of the revision petitioner is that the Court below has failed to see that the counter claim cannot be preferred after filing the written statement as per Order VIII Rule 6(A) C.P.C. Therefore, in the said counter claim, no amendment is possible. So the petitioner sought for setting aside the orders passed in I.A.Nos.322 and 324 of 2018 in O.S.No.13 of 2009 and to allow these Civil Revision Petitions.
14.Heard the learned counsel appearing for the Revision petitioner as well as the learned counsel for the respondent and perused the materials available on record.
15.The learned counsel appearing for the revision petitioner contended that the petitioner has filed a suit for permanent injunction restraining the defendants from interfering into the peaceful possession and enjoyment of suit property and also the pathway leading to the suit property.
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16.The grievance stated by the revision petitioner is that he filed I.A.No.300 of 2018 for framing of additional issues in view of the counter claim filed by the first defendant and also the reply statement made by the defendant. The other grievance made by the petitioner is that by way of filing I.A.No.300 of 2018 for framing of additional issues will not in any way prejudiced the first defendant, since she has not made any reference in her written statement regarding the filing of the counter claim in future and in view of the averments made in the counter claim and also in the reply statement, it is very much essential that the Court below ought to have framed additional issues to arrive at a correct decision.
17.In support of his contention, the petitioner has relied upon the judgment of the Hon'ble Apex Court in the case of VIJAY PRAKASH JARATH V. TEJ PRAKASH JARATH reported in 2016-4-L.W. 296 . He also relied upon another judgment of this Court in the case of N.VIJAYALAKSHMI V. JANAKIYAMMAL AND OTHERS reported in 2017(1) CTC 315 .
18.On a perusal of records, it is observed that the Civil Revision Petition in C.R.P.(MD)No.2855 of 2018 has been filed by the petitioner against the order passed in I.A.No.300 of 2018. The purpose of filing I.A.No.300 of 2018 is to frame additional issues. During the pendency of the same, the first defendant filed I.A.Nos.324 and 322 of 2018 for making certain amendment in her counter claim with regard to mentioning of the Section of the Court Fee Act and also for description of the property, since the petitioner/plaintiff in his written statement to counter claim has stated that though identity is required, it was not stated but the same was sought to be included, after the filing of the written statement by the plaintiff.
19.The trial Court observing the relief sought by the plaintiff with regard to the pathway and also the claim made by the first defendant in her written statement and also the counter claim filed by her held that amendment sought for in the counter claim are very much necessary for arriving at a correct decision in the suit and hence, the said petition was very much analyzed by the trial Court and order was made in the said petition, which in no way prejudice the petitioner/plaintiff, since the relief sought by the plaintiff is one for which, the said amendment is very much required. Regarding the claim made by the petitioner/plaintiff about the omission of mentioning the correct provision for the payment of court fee in the counter claim, a petition filed by the first defendant. Hence, by allowing those petitions, the purpose of filing the petition in I.A.No.300 of 2018 has become infructuous. Hence, the petitioner/plaintiff cannot have any grievance for the dismissal of the said petition (I.A.No.300 of 2018), when the claim he has made in the petition in I.A.No.300 of 2018 was properly considered https://hcservices.ecourts.gov.in/hcservices/
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in the petition filed by the first defendant in I.A.Nos.324 and 322 of 2018. Hence, these civil revision petitions filed by the petitioner/plaintiff appear to be filed only to drag on the proceedings. When the prayer made in the petition to frame additional issues was very much considered and proper order was also passed by the trial Court in the other petition filed by the first defendant, the necessity to entertain the petition in I.A.No.300 of 2017 does not arose. Hence, the dismissal of the said petition is proper and does not require any interference. Thus, it can be held that I.A.No.300 of 2018 is filed only to drag on the proceedings, since the suit is of the year 2009. Hence, the orders passed by the Court below do not warrant any interference by this Court.
20.For the forgoing reasons, these civil revision petitions are dismissed with a cost of Rs.500/- payable by the petitioner to the credit of the Hon'ble Chief Justice Relief Fund, within a period of two weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar(CO)
/TRUE COPY/
Sub Assistant Registrar
To
1.The District Munsif cum Judicial Magistrate Court, Kodaikanal.
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai. (2 copies)
COPY TO:
THE SECTION OFFICER, ACCOUNTS SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
CRP(MD).Nos.2855 to 2857 of 2018(PD) and C.M.P.(MD).No.12384 of 2018 in C.R.P.(MD).No.2855 of 2018 12.07.2019
ns
JM/24.09.2019/9P/5C
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2 issues framed by the court
Whether High Court must set aside trial court order for dismissal of an application for framing additional issues after the petitioner filed another application to amend the counter-claim.
Whether a petitioner can be prejudiced by allowing late amendments to a counter-claim filed after the written statement.
Colour shows how this judgement treated each authority
VIJAY PRAKASH JARATH V. TEJ PRAKASH JARATHReferred¶71
2016-4-L.W. 296
N. VIJAYALAKSHMI V. JANAKIYAMMAL AND OTHERSReferred¶71
2017(1) CTC 315
4 provisions across 1 enactments
A. Raja Mohamed
Bhadurnisha Begum
S. RAMATHILAGAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
