Allowed

Sami Ayya v. Albonsa @ Albonse Roy

Madras HC8 Jul 2022CRP(MD)/721/2022

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court allowed a civil revision petition seeking to set aside a District Munsif Court order dismissing a counter claim under CPC Order VIII Rule 9. The High Court directed the trial Court to accept the counter claim following the Advocate Commissioner's report.

What did the court decide?

The impugned order dismissing the counter claim is set aside; the trial Court is directed to take the counter claim on file.

Sami Ayya Vs Albonsa @ Albonse Roy — Property and Title | Madras HC (2022)

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C.R.P(MD)No.721 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated: 08.07.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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C.R.P(MD)No.721 of 2022

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Sami Ayya ... Petitioner

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1.Albonsa @ Albonse Roy

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2.Aasha Rani

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3.Prabhu Roy ... Respondents

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PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order and decree dated 08.10.2021 made in I.A.No.136 of 2020 in O.S.No.23 of 2017 on the file of the District Munsif cum Judicial Magistrate Court, Papanasam.

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For Petitioner : Mr.G.Gomathi Sankar For Respondents : No appearance

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ORDER

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This Civil Revision Petition is filed as against the fair and decreetal order passed in I.A.No.126 of 2020 in O.S.No.23 of 2017, dated 08.10.2021.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.721 of 2022

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2.The respondents have filed the suit in

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O.S.No.23 of 2017 for bare injunction as against the

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petitioner / defendant. The defendant filed written

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statement in the suit stating that the plaintiffs have

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encroached upon the defendant's property and has laid pipelines with an intention to grab the property of the

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defendant. At the instance of the plaintiffs, Advocate Commissioner was appointed in the suit and after

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the report of the Advocate Commissioner, the petitioner/

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defendant has filed an interlocutory application in IA.No.136 of 2020 under Order VIII Rule 9 of CPC as a

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counter claim for recovery of possession, which was dismissed on the ground that no cause of action for filing

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the counter claim before the report of the Advocate Commissioner.

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3.The learned Counsel for the petitioner submits that

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the trial Court dismissed the application that there is no cause of action for the petitioner to file counter claim

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while filing the written statement. The petitioner has taken a specific plea that the plaintiffs have encroached upon the defendant's property, however, the extent of the 2/6

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.721 of 2022

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encroachment is not known. Therefore, the petitioner at that relevant point of time has made counter claim that the plaintiffs have encroached the property of the defendant.

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4.The learned Counsel further by relying on the report

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of the Advocate Commissioner submits that the Advocate Commissioner report reveals that the plaintiffs have encroached upon the property of the defendant and only based on the report the petitioner has filed an application under Order VIII Rule 6(A) for counter claim, which has been dismissed by the trial Court without considering the reasons assigned therein.

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5.The learned Counsel by referring the decision of the

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Hon'ble Supreme Court in Ashok Kumar Vs Wing Cdr, Surendra

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Agnihotri, reported in 2020(2) SCC 394 submits that there

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is no embargo to file counter claim after filing of the written statement provided there shall not be substantive

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delay. He further submits that the trial Court has dismissed the application only on the ground that in the written statement no counter claim has been raised.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.721 of 2022

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6.Though notice was ordered to and served on the respondents and their names are printed in the cause list, there is no representation for the respondents.

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7.The trial Court has dismissed the application filed

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by the petitioner under Order VIII Rule 9 of CPC that as on

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the date of filing of the written statement there was no

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cause of action for raising counter claim. However, it is seen from records that this petitioner has taken a plea that the plaintiffs have encroached upon the property of the defendant and laid pipelines and suppressing these facts, the plaintiffs have filed the suit in a hurried manner. Therefore when the petitioner has taken a specific

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plea that the plaintiffs have encroached the property of the defendant, the trial court is not justified in dismissing the application on the ground of no cause of action as on the date of filing of the written statement. Further, in the decision cited supra, the Hon'ble Supreme Court has held that counter claim can be filed even after filing of the written statement.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.721 of 2022

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8.In view of the above, the civil revision petition is allowed. The impugned order is set aside. The trial Court is directed to take the counter claim on file and proceed further. No costs. Consequently connected miscellaneous petitions stand closed.

08.07.2022

dsk

The District Munsif cum Judicial Magistrate, Papanasam.

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https://www.mhc.tn.gov.in/judis

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C.R.P(MD)No.721 of 2022

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B.PUGALENDHI, J.

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dsk

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C.R.P(MD)No.721 of 2022

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08.07.2022

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https://www.mhc.tn.gov.in/judis

Sami Ayya v. Albonsa @ Albonse Roy

Case brief

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Sami Ayya v. Albonsa @ Albonse Roy

Case brief

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