Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1379 (MAD)

R. Dhanushkodi Nadar & Others v. N. Dhanabalan

2005-08-19

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 04.10.2002 passed by the learned Principal Subordinate Judge, Madurai in I.A.No.100 of 1997 in O.S.No.1269 of 1994,as stated therein.) This Civil Revision Petition arises out of the order of dismissal dated 04.10.2002 passed by the learned Principal Subordinate Judge, Madurai in I.A.No.100 of 1997 in O.S.No.1269 of 1994, dismissing the Petition filed under Order VIII Rule 6-A C.P.C, declining the permission to the Defendants to make their counter claim by way of Additional Written Statement. The Defendants / Landlords are the Revision Petitioners. 2. O.S.No.1269 of 1994:- The Suit is based on the Promissory Note. Case of the Plaintiff is that the First Defendant borrowed a sum of Rs.75,000/- from the Plaintiff on 12.12.1991 for putting up a new building construction in her own vacant place situated at Sudalaimuthu Pillai Lane, Madurai. Evidencing the borrowal, the First Defendant had executed the Promissory Note on 12.12.1991 agreeing to repay the said amount together with interest at Re.1/- per Rs.100/- per mensem on demand. Inspite of repeated oral demands, the First Defendant has not paid the amount. Hence, the Plaintiff has filed the Suit for recovery of Rs.1,01,550/-. During the pendency of the Suit, the First Defendant died and her Legal Heirs – D-2 to D-8 were impleaded as Legal Representatives. 3. The Defendants have filed Written Statement denying the borrowal of Rs.75,000/- from the Plaintiff. According to the Defendants, First Defendant is having a property at Door No.19-A/12, Sudalaimuthu Pillai Lane, East Santhaipettai, Madurai. The Second Defendant was managing the property onbehalf his Wife and D-1. The Plaintiff became a Tenant in the said property agreeing to pay a rent of Rs.3000/- for temporary period of three months from 15.01.1992. He had also paid an advance of Rs.25,000/- refundable at the time of vacating the premises. The Plaintiff wanted to conduct a Bakery business in the premises. Believing his representation, the Second Defendant has incurred heavy expenses for alteration of the Building to suit the convenience of the Plaintiff. Thereafter, the Plaintiff did not perform his part of the Agreement. Hence, the Second Defendant has filed the Applications before the Rent Controller, Madurai for eviction and fixation of fair rent in R.C.O.P.No.512 of 1992 and 514 of 1992. The Defendant was directed to pay the rent of Rs.3,000/- per month from January 1992. Thereafter, the Plaintiff did not perform his part of the Agreement. Hence, the Second Defendant has filed the Applications before the Rent Controller, Madurai for eviction and fixation of fair rent in R.C.O.P.No.512 of 1992 and 514 of 1992. The Defendant was directed to pay the rent of Rs.3,000/- per month from January 1992. Claiming rental arrears of Rs.1,00,000/-, the Second Defendant has filed O.S.No.86 of 1996 on the file of First Additional Sub-Court, Madurai. The Written Statement was filed on 25.04.1996. 4. Making counter claim of Rs.75,000/- being the arrears of rent from 16.01.1995 to 15.02.1997 – for a period of 25 months, the Second Defendant has filed I.A.No.100 of 1997 to receive the Additional Written Statement / Counter Claim. In the Counter Claim, the Second Defendant has stated that the Plaintiff is due to pay the arrears of rent and hence, the Application is to be allowed permitting the Defendant to file the Additional Written Statement with the counter claim. 5. The Application was strongly resisted by the Plaintiff contending that several opportunity was already afforded for filing the Written Statement and the Application making the Counter Claim of Rs.75,000/- by way of filing the Additional Written Statement is highly belated. 6. Upon consideration of the rival contentions of both parties, learned Principal Subordinate Judge, Madurai dismissed the Application finding that for recovery of arrears of rent, the Second Defendant has filed O.S.No.86 of 1996 and any remedy for arrears of rent is to be sought for only in the said Suit. Finding that the arrears of rent cannot be pleaded as the counter claim, the learned Subordinate Judge dismissed the Application. 7. Drawing the attention of the Court to the order of the Rent Controller made in R.C.O.P.No.514 of 1992 fixing the Fair Rent at Rs.3000/-, learned counsel for the Revision Petitioner / Second Defendant contended that the Second Defendant ought to be given the opportunity for making the Counter Claim / Set Off. It is submitted that after the institution of the Suit, the Counter Claim / Set Off may be raised by the Defendant in his Written Statement. It is submitted that after the institution of the Suit, the Counter Claim / Set Off may be raised by the Defendant in his Written Statement. It is further submitted that the Counter Claim is raised in the Additional Written Statement for the Rental Arrears from 16.01.1995 to 15.02.1997, which would arise in furtherance of Fair Rent fixed in R.C.O.P.No.512 of 1992 and the learned Judge erred in finding that the remedy could be worked out in the Suit O.S.No.86 of 1996, which is filed for arrears of rent for the earlier period from 15.01.1992 to 15.01.1995. 8. Upon consideration of the contentions of the Revision Petitioners / Defendants, Impugned Order and other materials on record, the following points arise for consideration in this Civil Revision Petition: i. Whether the Defendants could be allowed to file Written Statement making the Counter Claim of arrears of rent of Rs.75,000/- from 16.01.1995 to 15.02.1997? ii.Whether the Impugned Order dismissing the Application to file the Additional Written Statement making the Counter Claim suffers from serious error and infirmity warranting interference? 9. Admittedly, Second Defendant's Wife – Chandrodhayam Ammal – the First Defendant was having the property in Door No.19-A/12, Sudalaimuthu Pillai Lane, East Santhaipettai, Madurai. The Plaintiff became the Tenant of the said Premises. The Plaintiff is said to have entered into an Agreement of Lease in respect of the Demised Property on a monthly rent of Rs.3000/-. The Plaintiff is also said to have advanced an Interest free advance of Rs.25,000/-. It is also stated that the Plaintiff has agreed to pay Rs.1,00,000/- interest free advance for the Tenancy Agreement. The Plaintiff is alleged to have made default in paying the amount and also entering into the Permanent Lease Agreement. 10. There had been much strain in the Landlord – Tenancy relationship between the parties. Due to differences, the Landlord and the Tenant are entangled in several rounds of litigation. The Landlord – Second Defendant has filed R.C.O.P.No.512 of 1992 and 514 of 1992 for Eviction and for Fixation of Fair Rent for the Building. In R.C.O.P.No.514 of 2002, the Plaintiff has filed an Application under Sec. 11(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act to fix Fair Rent payable to the Defendants. After elaborate Enquiry, the relationship of the Landlord and the Tenant was accepted and the monthly Rent was fixed at Rs.3,000/-. In R.C.O.P.No.514 of 2002, the Plaintiff has filed an Application under Sec. 11(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act to fix Fair Rent payable to the Defendants. After elaborate Enquiry, the relationship of the Landlord and the Tenant was accepted and the monthly Rent was fixed at Rs.3,000/-. By the order dated 13.11.1996, the Rent Controller has also allowed the Application filed under Sec.11 (4) of Act in I.A.No. 196 of 1993, directing the Plaintiff to deposit the arrears of Rent. The Plaintiff has not preferred any Appeal against the order of the Rent Controller. Since the Plaintiff has not deposited the arrears of rent as per the order of the Rent Controller, the Defendants have filed O.S.No.86 of 1996 for recovery of arrears of rent of Rs.1,08,000/- being the arrears of rent for a period of 36 months from 15.01.1992 to 15.01.1995. For the period from 16.01.1995 to 15.02.1997, the arrears of Rent is Rs.75,000/- which amount is sought to be claimed as the Counter Claim in the Additional Written Statement. 11. The Cause of Action for the Counter Claim is from 16.01.1995 to 15.01.1997. Earlier, the Defendant has filed the Written Statement on 25.04.1996. By perusal of the Counter Statement, it is seen that Defendants 2 to 8 appeared on 21.12.1995 and took time to file Written Statement. After number of adjournments, the case was adjourned to 07.03.1996 as a last chance for filing the Written Statement. Again on 07.03.1996, the Defendant took time to file the Written Statement and the Suit was adjourned to 11.04.1996. On 11.04.1996, the Defendants did not file the Written Statement and they were set exparte and the case was posted for evidence on 25.04.1996. Only on 25.04.1996, the Defendants filed the Application to set aside the exparte order and also filed the Written Statement. That Application was allowed and the Written Statement was received. The Issues were also framed and the Suit was posted for Trial on 29.10.1996. Again the Suit was adjourned to 29.11.1996 and thereafter adjourned to 07.01.1997 and 10.02.1997. At that stage, the Application was filed to receive Additional Written Statement. It seems sufficient opportunity had already been afforded to the Defendants to file their Written Statement. Inspite of several opportunities, the Defendants have not made their Counter Claim in the Written Statement filed earlier. Again the Suit was adjourned to 29.11.1996 and thereafter adjourned to 07.01.1997 and 10.02.1997. At that stage, the Application was filed to receive Additional Written Statement. It seems sufficient opportunity had already been afforded to the Defendants to file their Written Statement. Inspite of several opportunities, the Defendants have not made their Counter Claim in the Written Statement filed earlier. Only when the case was posted for Trial finally, the Application was filed to receive the Additional Written Statement making the Counter Claim. Even at the outset, it is to be pointed out that the Application has been filed belatedly. 12. Be that as it may, the Counter Claim is made for claiming the rental arrears from 16.01.1995 to 15.02.1997. Earlier, Written Statement was filed on 25.04.1996. Part of Cause of Action has arisen subsequent to the filing of the Written Statement. If the Cause of Action for the Counter Claim has arisen subsequent to the filing of the Written Statement, the Counter Claim is not maintainable. Any cause of Action which may arise after the filing of the Written Statement by the Defendant would not come within the scope of Order VIII Rule 6-A C.P.C. Hence, the Counter Claim of Rental Arrears for the period from 16.01.1995 to 15.02.1997 – a part of which has arisen after the Defendants have filed their Written Statement is not maintainable. 13. Learned counsel for the Revision Petitioners has contended that the Defendants could be permitted to file their Counter claim even after filing of the Written Statement. In support of his contention, learned counsel has relied upon the decision of the Division Bench of this Court reported in SOUTHERN ANCILLARIES PRIVATE LIMITED ..VS.. SOUTHERN ALLOY FOUNDARIES PRIVATE LIMITED ( 2003 (2) L.W. 295 ) wherein it has been held that the Defendant can make a counter claim even after filing the Written Statement but that should be before the commencement of recording of evidence. In the said case, the Division Bench has referred to the decision of the Supreme Court reported in MAHENDRA KUMAR ..VS.. STATE OF M.P (A.I.R. 1987 S.C. 1395) wherein the Supreme Court has observed "...The next point that remains to be considered is whether R.6-A(1) of O.VIII C.P.C bars the filing of a counter claim after the filing of the Written Statement. STATE OF M.P (A.I.R. 1987 S.C. 1395) wherein the Supreme Court has observed "...The next point that remains to be considered is whether R.6-A(1) of O.VIII C.P.C bars the filing of a counter claim after the filing of the Written Statement. This point need not detain us long, for R.6-A(1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the Written Statement. What is laid down under R.6-A(1) is that a counter claim can be filed, provided the cause of action had accrued to the Defendant before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of R.6-A(1) in holding that as the appellants had filed the counter claim after the filing of the Written Statement, the counter claim was not maintainable...." 14. In the above decision, it is observed that there is no bar in filing counter claim after the filing of the Written Statement provided the cause of action had accrued to the Defendant before the Defendant had delivered his defence or before the time limit for delivering his defence. The emphasis is on the expression "cause of action .....had accrued to the Defendant before the Defendant had delivered his defence". As discussed earlier, the cause of action for the counter claim is from 16.01.1995 to 15.02.1997 - part of cause of action has arisen after filing of the Written Statement (25.04.1996), for which the Counter Claim does not lie. 15. Learned counsel for the Revision Petitioner has submitted that when the parties are yet to adduce evidence, opportunity is to be given to the Revision Petitioners to put forth their counter claim, making a claim against the Plaintiff towards rental arrears. This contention has no merits. By permitting the Defendants to file Counter Claim for the rental arrears, there would be entirely a new plea which would be contradictory to the earlier plea. It is to be noted that the Counter Claim has not been put forth at the earliest point of time. In the Written Statement filed earlier, there was denial of passing of consideration; now the plea of counter claim is made thereby indirectly admitting passing of the consideration. It is to be noted that the Counter Claim has not been put forth at the earliest point of time. In the Written Statement filed earlier, there was denial of passing of consideration; now the plea of counter claim is made thereby indirectly admitting passing of the consideration. Under such circumstances, learned Subordinate Judge has rightly declined to allow the Application to receive the Additional Written Statement making counter claim. 16. Learned counsel for the Respondent has submitted that when Execution of the Promissory Note has been denied, the Defendants cannot be permitted to put forth a counter claim, which is totally contradictory to the earlier plea. Submitting that the counter claim should have a nexus to the earlier defence, learned counsel for the Respondent has relied upon the decision reported in ANINDA SAHA ..VS.. AMAL SAHA (A.I.R. 2001 NOC 101 (CALCUTTA)). It is further submitted that the issues are framed and that the Suit is ready for trial and the Application has been filed only to delay the trial proceedings. Taking note of the conduct of the Defendants, the lower Court has rightly dismissed the petition filed under order VIII Rule 6-A C.P.C and the Impugned Order does not suffer from any infirmity warranting interference. 17. It is stated that only in R.C.O.P.No.514 of 1992 deposit of rent was ordered. Challenging the Judgment in R.C.O.P.No.514 of 1992, the Plaintiff has already filed O.S.No.947 of 2000 on the file of Second Additional Subordinate Court, Madurai for declaring that the order of Rent Controller is void and not binding upon the Plaintiff. Submitting that the Counter Claim for arrears of rent is already subjudice, learned counsel for the Revision Petitioner has contended that if the counter claim is permitted to be made, it would complicate the issues involved in the Suit. Contending that the counter claim must have the nexus to the earlier defence plea put forth and that in the present case, the counter claim put forth is entirely alien to the earlier claim of the Defendant, learned counsel for the Respondent relied upon the decision reported in ANINDA SAHA ..VS.. AMAL SAHA (A.I.R. 2001 NOC 101 (CALCUTTA)) wherein the Calcutta High Court has observed as under: "....The word "set-off" or "counter claim" has a particular meaning. Set-off means a defence or claim in respect of the claim in the suit. AMAL SAHA (A.I.R. 2001 NOC 101 (CALCUTTA)) wherein the Calcutta High Court has observed as under: "....The word "set-off" or "counter claim" has a particular meaning. Set-off means a defence or claim in respect of the claim in the suit. Similarly, the counter claim is also a claim counter to the claim of the Plaintiff related to the Suit in between the parties and the subject matter involved. In both Rule 6 and R.6-A the set-off or counter – claim cannot travel beyond the scope and limit of the Suit with which it is concerned. It cannot bring about something which is completely foreign to the Suit. Counter claim is a claim which runs counter to that of the plaintiff's claim. It has some relation or nexus with the claim of the Plaintiff. It cannot be something completely foreign to the claim of the Plaintiff having no nexus with the subject matter involved in the Suit...." As discussed earlier, the Defendants have denied the execution of the Suit Promissory Note. Taking entirely a contradictory stand by filing the counter claim, the Defendants adopt an inconsistent approach which cannot be permitted. 18. The Suit is for recovery of money on the Promissory Note. The Plaintiff's claim is based on the Suit Promissory Note. In the Suit, some of the issues for determination would be whether the First Defendant has borrowed the amount?; whether the First Defendant has not repaid the amount?; Whether the First Defendant has signed in the Promissory Note in the circumstances alleged by the Defendants?; and Whether the Suit Promissory Note is not supported by consideration? The Plaintiff has to prove the borrowal and the Execution of the Promissory Note. Similarly the burden lies upon the Defendants to prove that the Signature of the First Defendant was obtained in the Promissory Note in the circumstances alleged by them in the Written Statement viz., that the First Defendant signed in the Promissory Note in connection with the Lease Agreement. The burden also lies upon the Defendants to prove that the Suit Promissory Note is not supported by consideration. If the Plaintiff does not prove the borrowal and Execution of the Promissory Note and if the Defendants succeed in establishing their defence, the Plaintiff may fail. The burden also lies upon the Defendants to prove that the Suit Promissory Note is not supported by consideration. If the Plaintiff does not prove the borrowal and Execution of the Promissory Note and if the Defendants succeed in establishing their defence, the Plaintiff may fail. But, the circumstances under which the signature of the First Defendant is alleged to have been obtained cannot be the ground to allow the Defendants to make the counter claim; that too by way of filing Additional Written Statement belatedly after the Suit has been posted for Trial finally. 19. The Counter Claim is made for the Rental Arrears from 16.01.1995 to 15.02.1997. The claim of Rental Arrears is not in any way connected with the Money Claim but, related to Landlord Tenancy relationship and pertaining to the Lease Agreement, which is the subject matter of the dispute in Rent Control Petitions and in O.S.No.86 of 1996 and O.S.No.947 of 2000. 20. Taking note of number of litigations between the parties and other circumstances, learned Subordinate Judge has rightly dismissed the Application filed under Order VIII Rule 6-A C.P.C. The Impugned Order does not suffer from any material irregularity or error apparent on the face of record, warranting interference, exercising the jurisdiction under Article 227 of the Constitution of India. This Civil Revision Petition has no merits and the same is bound to fail. 21. For the foregoing reasons, the Order dated 04.10.2002 of the learned Principal Subordinate Judge, Madurai in I.A.No.100 of 1997 in O.S.No.1269 of 1994 is confirmed and this Civil Revision Petition is dismissed. Consequently, the connected C.M.P.No.2838 of 2003 is dismissed. In the circumstances of the case, there is no order as to costs.