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2018 DIGILAW 3630 (MAD)

N. S. Shanmuganathan (Died) v. Sampoornam

2018-10-08

M.S.RAMESH

body2018
JUDGMENT M.S. Ramesh, J. The present revision petitions have been filed challenging the orders passed by the learned III Additional District Judge, Salem in I.A.Nos.551, 552 of 2015 & 106 of 2016 in O.S.No.211 of 2013 respectively dated 15.09.2016. 2. Heard Mrs.Hema Sampath, learned Senior counsel for the petitioners and Mr. D. Shivakumaran, learned counsel for the respondents 1 & 2. 3. The petitioners herein are the wife and daughters of Late N.S. Shanmuganathan in the aforesaid suit for partition filed by the respondents 1 and 2 herein. 4. Pending the suit, the plaintiffs/respondents 1 and 2 filed an application in I.A.No.106 of 2016 seeking for amendment of the plaint. The husband of the first petitioner and father of the petitioners 2 and 3 herein had filed two applications in I.A.No.551 of 2015 seeking permission to file additional written statement along with a counter claim and I.A.No.552 of 2015 for impleading four more parties as defendants. While I.A.No.106 of 2016 was allowed, I.A.Nos.551 & 552 of 2015 came to be dismissed. Challenging these three orders, the present Civil Revision Petitions are filed. Since the issue involved in all these applications arise out of the same suit and between the same parties, these revisions are being disposed of through a common order. 5. Mrs. Hema Sampath, learned Senior counsel for the petitioners submitted that the order permitting amendment of the plaint has, in effect, decreed the suit itself since the trial Court has rendered a finding that the suit properties are not the joint family properties of the husband/father of the petitioners and the respondents 1 and 2 herein and that the character of the properties can be decided only after completion of the trial and on appreciation of the evidences and it cannot be decided on the mere ipse dixit of the respondents 1 and 2. The learned Senior counsel further submitted that the counter claim of the petitioners herein, ought not to have been rejected since it would not cause prejudice to the respondents 1 and 2 herein in any way, but on the other hand, would only stand to gain if more properties are brought into the purview of the suit for partition. The learned Senior counsel further submitted that the counter claim of the petitioners herein, ought not to have been rejected since it would not cause prejudice to the respondents 1 and 2 herein in any way, but on the other hand, would only stand to gain if more properties are brought into the purview of the suit for partition. As such, the learned Senior counsel submitted that the Court below had grossly erred by passing a sketchy order in I.A.Nos.551 & 552 of 2015 and coming to the conclusion that the suit properties were jointly owned property and not joint family property, thus deciding the suit itself at the preliminary stage. 6. Mr. D. Shivakumaran, learned counsel for the respondents 1 and 2 on the other hand countered the arguments of the learned Senior counsel and submitted that the modus operandi of the petitioners herein is with a design to protract the proceedings in a systematic manner, amounting to an abuse of process of law. According to the learned counsel, the late husband/father of the petitioners herein had admitted in his written statement that that item Nos.1 to 4 of the suit properties were purchased in the name of Pappathi @ Marayammal and item 5 was purchased in the name of Sengoda Gounder and that all the suit properties were purchased from out of the joint family money for the welfare and benefit of the joint family and all the members are in joint possession and enjoyment of the suit property. While admitting that the suit properties are self acquired properties of Pappathi @ Marayammal and Sengoda Gounder, these petitioners have disputed the sharing ratio alone and while that being so, bringing certain other properties of the brothers and sisters of Late Sengoda Gounder into the purview of the present suit, by way of a counter claim, is unwarranted. The learned counsel further submitted that the applications seeking for counter claim and impleadment were belatedly made, after the issues were framed and the trial had commenced, with the sole intention of protracting the proceedings. The learned counsel submitted that the respondents 1 and 2 herein are more than 70 years of age and the intention of these petitioners to protract the proceedings, is with an ulterior motive. The learned counsel submitted that the respondents 1 and 2 herein are more than 70 years of age and the intention of these petitioners to protract the proceedings, is with an ulterior motive. Even otherwise, since the properties which are now sought to be included by way of a counter claim are neither connected with the defence in the present suit nor with its cause of action, the claim cannot be clubbed together at this belated stage and if at all these petitioners are aggrieved, it was always open to them to ventilate their grievances through separate proceedings. 7. I have given careful consideration to the submissions made by the respective counsels. 8. Before addressing the submissions made by the respective counsels, it would be appropriate to go through the brief facts of the case, as evidenced in the pleadings. The respondents 1 and 2 herein had filed the above suit originally against Late N.S.Shanmuganathan/D1 seeking for a decree of partition, claiming division of the suit properties into three equal shares and allotment of 2/3rd shares to the plaintiffs', among other reliefs. The suit properties consists of five items in which item Nos.1 to 4 is claimed to have belonged to Pappathi @ Marayammal, who is the mother of Late N.S.Shanmuganathan/D1 and the respondents 1 and 2 herein, and item No.5 of the suit property is claimed to have belonged to Sengoda Gounder, who is their father. Both Sengoda Gounder and Pappathi @ Marayammal died intestate on 04.10.1990 and 20.01.2000 respectively. According to the respondents 1 and 2, they, along with the first defendant, became entitled to 1/3rd share of the suit property. During the pendency of the suit, the first petitioner herein had filed I.A.No.691 of 2014 to implead the respondents 3 to 11 herein, who are the first cousins of Late N.S.Shanmuganathan/D1 and the said application came to be allowed on 01.10.2015 impleading them as defendants 2 to 10 in the suit. 9. Thereafter, the respondents 1 and 2 herein had filed an application in I.A.No.106 of 2016 under Order 6 Rule 17 of the Civil Procedure Code for amending the plaint to the effect that the suit properties, which were described as 'joint family properties' was sought to be amended as 'jointly owned properties'. 9. Thereafter, the respondents 1 and 2 herein had filed an application in I.A.No.106 of 2016 under Order 6 Rule 17 of the Civil Procedure Code for amending the plaint to the effect that the suit properties, which were described as 'joint family properties' was sought to be amended as 'jointly owned properties'. Late N.S.Shanmuganathan/D1 filed an application in I.A.No.551 of 2015 under Order 8 Rule 9 of the Civil Procedure Code seeking for leave to file additional written statement along with a counter claim and another application in I.A.No.552 of 2015 under Order 1 Rule 10 of the Civil Procedure Code seeking to implead four other persons as defendants in the suit. The application in I.A.No.691 of 2014 came to be filed after the trial had commenced and after about one year, Late N.S.Shanmuganathan/D1 had filed the aforesaid two applications, seeking leave to file additional written statement with counter claim and for impleading four more persons. Since the respondents 1 and 2 herein were of the view that the suit proceedings were being prolonged unnecessarily, they had filed a revision before this Court invoking Article 227 of the Constitution of India in C.R.P.(PD).No.1915 of 2016 and by an order dated 29.01.2016, this Court had directed the Court below to dispose of all the aforesaid three applications within a period of one month. It is in this background that the aforesaid applications came to be disposed, as against which, the present Civil Revision Petitions have been preferred. 10. With regard to the contention of the learned Senior counsel for the petitioners that the Court below decided the suit itself in the preliminary stage by coming to the conclusion that the suit properties were jointly owned properties and not joint family properties is concerned, it is seen on a perusal of the said order passed in I.A.No.106 of 2016 that the Court below had indeed observed in para 25 therein that earlier when the defendants 2 to 10 were impleaded in the suit, they had contended that they had no connection with the suit properties and they are not the joint family properties as alleged by Late N.S.Shanmuganathan/D1 and therefore had come to the conclusion that it will not give rise to a presumption that the suit properties are the joint family properties of the petitioners and the respondents 1 and 2. Though the circumstances under which such an observation came to be made by the trial Court may seem passable, effectively the finding at this preliminary stage, before the conclusion of the trial, was not warranted. As rightly pointed out by the learned Senior counsel for the petitioners, such a finding might touch upon the root of the matter and may have a bearing on the final outcome of the suit. In order to set right such a discrepancy, it would be appropriate to abandon and eschew the finding in order to place the parties on a fair ground to establish their respective rights through oral and documentary evidences after trial. In the light of the above observations, it is hereby held that the finding of the Court below in the applications I.A.Nos.106 of 2016, 551/2015 and 552 of 2015 in O.S.No.211 of 2013, wherever the findings read that "the suit properties are the jointly owned properties" of the Sengoda Gounder and Pappathi @ Marayammal are disavowed and eschewed and neither the parties nor the Court below shall place reliance on such findings in these applications, during the course of the final proceedings in the suit. 11. Nevertheless, insofar as the amendment sought for by the respondents 1 and 2 herein to remove the word "joint family property" in the plaint and substitute the word "jointly owned property" is concerned, I am unable to see as to how any prejudice could be caused to the petitioners herein if such an amendment is allowed. It is also the case of the petitioners herein that the suit properties are the self acquired properties of Sengoda Gounder and Pappathi @ Marayammal and that they were in joint possession and enjoyment of their three children. The proportion/ratio of entitlement of each of the parties over the suit property is a triable issue, which can be deliberated before the Court after due trial. Though the findings of the trial Court that the suit properties are the jointly owned properties of Sengoda Gounder and Pappathi @ Marayammal are not warranted, the amendment sought for may be proper. The amendment, as ordered will not affect the rights of either of the parties and as such, allowing of the application in I.A.No.106 of 2016 by the Court below does not require any interference. 12. The amendment, as ordered will not affect the rights of either of the parties and as such, allowing of the application in I.A.No.106 of 2016 by the Court below does not require any interference. 12. Order 6 Rule 17 of the Civil Procedure Code empowers the Court to allow either of the parties to amend their pleadings at any stage for the purpose of determining the real questions in controversy between the parties. Some of the basic principles which has been laid down and reiterated in various judgments of the Hon'ble Apex Court are briefly thus:- (1) The amendments sought is for proper and effective adjudication of the case. (2) The application for amendment should be bona-fide. (3) The amendment should not cause serious prejudice to the either side. (4) Refusal of the application for amendment would render injustice to the party or lead to multiple litigations. (5) The proposed amendment should not constitutionally or fundamentally change the nature and character of the case. (6) A fresh suit on an amended plaint should not be barred by limitation. 13. In the instant case, the reason assigned by the respondents herein seeking for amendment of the plaint to substitute the words "joint family properties" instead of "jointly owned properties" is that the phrase has been inadvertently pleaded in the original plaint and on an overall reading of the plaint in its entirety it is seen that the respondents herein had pleaded intestate succession. While that being so, it can only be held that the inclusion of the phrase "joint family property" could have been inadvertently pleaded. Since the suit is one for partition, the nature of the property gains significance and such an amendment sought is imperative for proper and effective adjudication of the case. It is also the case of the petitioners herein in their written statement that the suit properties originally belong to Sengoda Gounder and Pappathi @ Marayammal. As such, no prejudice would be caused to the petitioners herein if such an amendment is made. As such, the order passed in I.A.No.106 of 2016 allowing the amendment is well within the object and scope of Order 6 Rule 17 of the Civil Procedure Code and does not suffer from any infirmity. 14. As such, no prejudice would be caused to the petitioners herein if such an amendment is made. As such, the order passed in I.A.No.106 of 2016 allowing the amendment is well within the object and scope of Order 6 Rule 17 of the Civil Procedure Code and does not suffer from any infirmity. 14. With regard to the orders in the applications viz., I.A.Nos.551 & 552 of 2015 seeking for leave to file an additional written statement along with a counter claim and for impleading four more parties as defendants in the suit is concerned, it would be appropriate to further explore the necessity for the petitioners herein to make out such applications at this stage. As per the pleadings of both parties, the suit has been filed for partition of five items of properties which are claimed to have been purchased by Sengoda Gounder and Pappathi @ Marayammal, through five different sale deeds. The written statement filed by the defendants 2 to 10 also reiterate that they have no right, title or interest over these suit properties as alleged by Late N.S.Shanmuganathan/D1. As a matter of fact, these defendants 2 to 10 have further stated in their written statement that Sengoda Gounder have come out of the joint family and had purchased the suit properties out of his own efforts and labour and both he and his wife died intestate leaving behind the plaintiffs and the first defendant in the suit as legal heirs. 15. The properties which are now attempted to be included in the subject matter of the suit, by way of a counter claim, are properties that do not stand in the name of either Sengoda Gounder or his wife Pappathi @ Marayammal. Late N.S.Shanmuganathan/D1 had come out with a specific case in the counter claim that the schedule of properties in the counter claim belong to the larger joint family and the patta to these properties remain as joint patta. The counter claim also reiterates that the suit properties in O.S.No.211 of 2013 was purchased by Sengoda Gounder as the 'kartha' of a small joint family consisting of himself and their son namely, Late N.S.Shanmuganathan/D1. As such, the counter claim of Late N.S.Shanmuganathan/D1 is that he is entitled to 28 shares out of 180 shares in the larger joint family property which is the subject property in the counter claim. As such, the counter claim of Late N.S.Shanmuganathan/D1 is that he is entitled to 28 shares out of 180 shares in the larger joint family property which is the subject property in the counter claim. The trial Court had rejected the petitioners' counter claim on the ground that such a claim was belatedly made after the trial had commenced with a view to protract the proceedings. 16. Order 8 Rule 6(A) of the Civil Procedure Code provides for admissibility of a counter claim to enforce an additional and independent right, connected with the claim made in the plaint. The said provision reads as follows:- "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 a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 17. A bare reading of the aforesaid provision sets out the right of the defendant to set up a counter claim against the claim of the plaintiff and such right should be set up against the plaintiff in respect of the cause of action accruing to the defendant. In other words, the counter claim requires to be necessarily directed against the plaintiff. Putting this proposition to suite the facts of the present case, the defendant cannot claim relief solely against the co-defendants though such a claim can be directed against the plaintiff along with the co-defendants. In other words, the counter claim requires to be necessarily directed against the plaintiff. Putting this proposition to suite the facts of the present case, the defendant cannot claim relief solely against the co-defendants though such a claim can be directed against the plaintiff along with the co-defendants. The counter claim made by the petitioners herein is for including certain properties apart from the suit property, alleging the same to be as ancestral joint family properties, belonging to the larger joint family of their father and his three brothers. The plaintiffs in the original plaint do not seek any right or share over these properties, which are now sought to be included, along with the suit properties. As such, the counter claim is directed against the co-defendants 2 to 10 alone. In view of Rule 6(A) of Order 8 of the Civil Procedure Code, the petitioners herein will not be entitled to set up a counter claim against the co-defendants alone when the requirement of the provision of law is to enable the defendant to set up claim against the plaintiff in respect of the cause of action accruing to the defendant. 18. The Hon'ble Apex Court in Rohit Singh and Others V. State of Bihar (Now State of Jharkhand) and Others, (2006) 12 SCC 734 had observed that normally, a counter claim, though based on a different cause of action than the one put in suit by the plaintiff could be made, had categorically emphasized that such a counter claim has necessarily be directed against the plaintiff in the suit. It was also held therein that though the relief can be claimed against the plaintiff along with the co-defendants, a counter claim directed solely against the co-defendants cannot be maintained. Para 21 of the said judgment reads as follows: "21. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court." 19. Since the counter claim is not directed against the plaintiffs and also taking into account the fact that the respondents/plaintiffs have not made any claim over these properties which is sought to be included along with the suit schedule property, the counter claim itself is illegal and as such, rejection of the petitioner's application for setting up a counter claim by the trial Court was proper. Consequently, the application seeking for impleading the legal heirs of two daughters of Kandappa Gounder as party to the suit is unnecessary, since the counter claim made by the petitioners herein are held to be not maintainable. 20. For all the foregoing reasons and in the light of the above findings, the Civil Revision Petitions viz., CRP.Nos.2436, 2437 & 2438 of 2017 stands dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.