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Andhra High Court · body

2007 DIGILAW 529 (AP)

Shaik Jilani Basha v. Shaik Shakeera

2007-06-07

P.S.NARAYANA

body2007
Judgment :- Heard Sri P. Rajasekhar, learned counsel representing the revision petitioner and Sri A.Chandraiah Naidu, learned counsel representing respondent and perused the impugned order. 2. Sri P. Rajasekhar, learned counsel representing the revision petitioner, petitioner-defendant in I.A.No.1062 of 2006 in O.S.No.111 of 2006 on the file of the Principal Senior Civil Judge, Nellore, had taken this court through the impugned order and would submit that dismissal of the application praying for putting forth of the counter-claim on the ground that the written statement already was filed, cannot be a sustainable ground. The learned counsel placed strong reliance on the decisions in Mahendra Kumar and another V. State of M.P. and others (AIR 1987 SUPREME COURT 1395) and Smt. Shanti Rani Das Dewanjee V. Dinesh Chandra Day (dead) by LRs., (AIR 1997 SUPREME COURT 3985). The learned counsel also while further elaborating his submissions would maintain that though the application was filed under Order VI Rule 17 of the Code of Civil Procedure (hereinafter in short referred to as ‘the Code’ for the purpose of convenience), such application has all trappings of counter-claim, and hence, quoting of wrong provision cannot be a ground to dismiss the application. The learned counsel placed strong reliance on the decision of this Court in Shaik Yusuf Basha V. Delhi Massa Bi ( 2005(3) ALD 520 ). The learned counsel also would further submit that the plea of bar of limitation or the other like pleas may have to be decided at the appropriate stage. Even otherwise the respondent-plaintiff before the learned Principal Senior Civil Judge, Nellore, did not raise this ground. While further elaborating his submissions the learned counsel pointed out that it is true that a suit in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, already had been instituted. But, however, whether this counter-claim is hit by Order II Rule 2 of the Code also may have to be gone into at the appropriate stage and that cannot be a ground to dismiss the said application. Hence, the learned counsel would contend that inasmuch as the reasons recorded by the learned Principal Senior Civil Judge, Nellore, being unsustainable reasons, the impugned order is liable to be set aside. 3. Hence, the learned counsel would contend that inasmuch as the reasons recorded by the learned Principal Senior Civil Judge, Nellore, being unsustainable reasons, the impugned order is liable to be set aside. 3. Per contra, Sri A. Chandraiah Naidu, the learned counsel representing respondent-plaintiff would maintain that this application was filed under Order VI Rule 17 of the Code and a counter-claim filed by the defendant would be governed by Order VIII Rule 6-A of the Code and in the light of the specific language of Order VIII Rule 6A(1) of the Code the application cannot be maintained. The learned counsel also would submit that even otherwise in the instant case the trial already had commenced and the chief-examination affidavit of P.W.1 also was filed. The counsel would submit that even in the light of the proviso to Order VI Rule 17 of the Code, this application is liable to be dismissed and accordingly the learned Principal Senior Civil Judge, Nellore, had rightly dismissed the said application. The learned counsel also would point out that a suit for perpetual injunction in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, relating to the self same property had been instituted and instead of amending his own pleading, for the reasons best known, may be to get over the rigor of the proviso to Order VI Rule 17 of the Code, this application was thought of. Incidentally, the learned counsel also pointed out that the relief prayed for in the counter-claim of cancellation of the sale deed on the face, is barred by limitation. Even otherwise the counter-claim is hit by Order II Rule 2 of the Code and hence viewed from any angle the impugned order does not suffer from any illegality whatsoever. 4. This court ordered notice before admission on 15.02.2007 and interim stay of pronouncement of judgment only had been granted and it was directed that the other proceedings might go on. C.R.P.M.P.No.2408 of 2007 is filed to vacate the interim order dated 15.2.2007 and at the request of the counsel on record, the civil revision petition is being disposed of finally. 5. C.R.P.M.P.No.2408 of 2007 is filed to vacate the interim order dated 15.2.2007 and at the request of the counsel on record, the civil revision petition is being disposed of finally. 5. The revision petitioner herein, petitioner-defendant filed I.A.No.1062 of 2006 in O.S.No.111 of 2006 on the file of the Principal Senior Civil Judge, Nellore, under Order VI Rule 17 read with Section 151 of the Code praying for the relief to amend and add the counter-claim of cancellation of the registered sale deed dated 19.9.2001 and the proposed amendments as specified in the application are as hereunder. “Proposed amendment: 8th para 13 line. The defendant submits the sale deed dated 19.9.2001 is not intended to be acted upon. It is a sham and nominal one, null and void and the provisions of Benami Transactions Act hit it. This defendant submits the plaintiff has no capacity to purchase by the time of purchase. Her name is shown as Benami in the sale deed. Taking advantage of the sale deed the plaintiff and her husband trying to dispossess the defendant from the schedule mentioned property. The sale deed is not intended to be acted upon and the plaintiff is not in possession and enjoyment till today. The defendant submits to cancel the registered sale deed dated 19.9.2001 by way of counter-claim under Order VIII Rule 6(B) and the value of the property is Rs.1,47,000/- as per sale deed and a court fee of Rs.3,956/- is payable under Section 37(2) of A.P.C.F. and S.V. Act. Once again this defendant submits the registered sale deed dated 19.9.2001 purchased as Benami in the name of plaintiff is liable to be cancelled through court of law.” Consequential amendment: “Once again this defendant submits the plaintiff is not in possession and enjoyment. If it is purchased by their own funds they would have done business or leased out. Even today this defendant is in possession and enjoyment and doing fruit business and using as a godown and office rooms. This plaintiff is residing at Indukurpet. She does not know till December 2003 she is out of possession and she has no right or title over the schedule mentioned property. She is not entitled to the relief of declaration, for mandatory injunction and the suit is filed only to harass this defendants and to grab the property unable to tolerate the progress and development of this defendant. She is not entitled to the relief of declaration, for mandatory injunction and the suit is filed only to harass this defendants and to grab the property unable to tolerate the progress and development of this defendant. The defendant submits the sale deed dated 19.9.2001 is not intended to be acted upon. It is a sham and nominal one and it is null and void. It is hit by the provisions of Benami Transactions Act. The defendant submits the plaintiff has no capacity to purchase by the time of purchase. Her name is shown as Benami in the sale deed. Taking advantage of the sale deed the plaintiff and her husband trying to dispossess the defendant from the schedule mentioned property. The sale deed is not intended to be acted upon and the plaintiff is not in possession and enjoyment till today the defendant prays to cancel the registered sale deed dated 19.9.2001 by way of counter-claim under Order 8, Rule 6B and the then value of the property is Rs.1,47,000/- and a court fee of Rs.3,956/- is payable under Section 37(2) of A.P.C.F & S.V. Act. Once again this defendant submits the registered sale deed dated 19.9.2001 purchased as Benami in the name of plaintiff is liable to be cancelled through court of law. Plaintiff filed the suit. The suit is devoid of merits and the same is liable to be dismissed with costs.” 6. The application was resisted by filing a counter that already written statement was filed with definite specific pleas. Further specific stand was taken that already a suit for perpetual injunction in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, was instituted in respect of self same property and if any amendments are felt necessary in the said suit including these prayers, an application of this nature could have been filed in the said suit and even if pecuniary jurisdiction exceeds the said court it is immaterial instead of following such procedure an application of this nature to amend the written statement so as to convert the same into a counter-claim would be hit by Order II Rule 2 of the Code. The learned judge recorded reasons at para 7 and ultimately dismissed the application without costs. Aggrieved by the same, the present civil revision petition is preferred. 7. The learned judge recorded reasons at para 7 and ultimately dismissed the application without costs. Aggrieved by the same, the present civil revision petition is preferred. 7. The specific stand taken by the revision petitioner in the proposed counter-claim filed by way of an application to amend the written statement is that the document in question is a sham and nominal document and hit by the provisions of Benami Transactions Act and the said document dated 19.9.2001 is liable to be cancelled by way of counter-claim. It is not in dispute that the trial had already been commenced and the chief-examination affidavit of P.W.1 was also filed. The proviso to Order VI Rule 17 of the Code specifies that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is needless to say that no convincing reasons relating to due diligence or otherwise are forthcoming. Order VIII Rule 6A of the Code deals with counter-claim by defendant and the said provision reads as hereunder. 6A. Counter-claim by defendant—(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or 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: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file the Court may fix a written statement in answer to the counter-claim of the defendant within such period as. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. (3) The plaintiff shall be at liberty to file the Court may fix a written statement in answer to the counter-claim of the defendant within such period as. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. Strong reliance was placed on the decisions in Mahendra Kumar and another V. State of M.P. and others (1 supra) and Smt. Shanti Rani Das Dewanjee V. Dinesh Chandra Day (dead) by LRs., (2 supra) wherein the Apex Court held that filing of application under Order VIII Rule 6-A of the Code is not ex facie barred after filing of the written statement. Further strong reliance was placed on the decision of this Court in Shaik Yusuf Basha V. Delhi Massa Bi (3 supra) whereunder this Court observed thus. “Per contra, in the instant case, an interlocutory application under Order VI Rule 17 CPC had been filed by the defendant. The title as claimed by the plaintiff in the plaint averments had already been refuted by the defendant in the written statement basing his right on a registered sale deed. But, the relief of possession had not been sought for. Hence, the application had been filed seeking relief of possession also. In this backdrop, it is to be noted that when the defendant is seeking the relief of possession, particularly in the light of denial of the right of the plaintiff over the petition schedule property, he need not necessarily be estopped from filing a counter-claim. Furthermore, it is to be noticed and as already pointed out that though the application had been filed under Order VI Rule 17 CPC it has got all the trappings of Order VIII Rule 6-A and hence, it should be treated only as an application filed under Order VIII Rule 6-A and as such a counter-claim only. Therefore, the quintessence of the above judgments of the Apex Court is that when the defendant files a counter-claim, for entertaining the same, the question of limitation for the purpose of cause of action does not arise and the only limitation for entertaining the same is that whether the cause of action for filing the counter-claim arose before the expiry of the time fixed for filing of the written statement. Even otherwise, as pointed out by the Apex Court in Pankaja’ case (supra) any such question of limitation if raised by the plaintiff should be gone into by the Trial Court alone and precisely, that is the reason why the Apex Court in the said case found fault with the order of dismissal of Trial Court which was confirmed by the High Court and remitted the matter to the Trial Court for fresh consideration after framing necessary issues. Therefore, viewed from any angle, notwithstanding whether the application is filed under Order VI Rule 17 CPC or Order VIII Rule 6-A CPC, the same has necessarily to be gone into by the Trial Court. In the instant case, as already held, the interlocutory application though filed under Order VI Rule 17 CPC is couched with all the trappings of Order VIII Rule 6-A CPC and therefore, it should be treated as a counter-claim.” It is no doubt true that the plea of bar of limitation and the plea that the counter-claim is hit by Order II Rule 2 of the Code, these aspects may be gone into at the appropriate stage. When a counter-claim had been thought of with a view to get over the rigor of the proviso to Order VI Rule 17 of the Code, courts may have to be careful and cautious. Even otherwise here is a case where an earlier suit O.S.No.664 of 2005 praying for the relief of perpetual injunction relating to self same property on the file of III additional Junior Civil Judge, Nellore, had been instituted. Instead of taking appropriate steps to amend his own pleading for the reasons best known, the revision petitioner had thought of filing the present application. 8. In the light of the reasons recorded by the learned judge at para 7, this Court is of the considered opinion that the impugned order does not suffer from any illegality whatsoever. However, it is made clear that this order would not come in the way of the revision petitioner in taking appropriate steps in amending his pleading in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, if revision petitioner is so advised. Except making this observation, no other relief can be granted. 9. Accordingly, the civil revision petition shall stand dismissed subject to the above observation. No order as to costs.