Chellamma v. Sebastian s/o Varkey and Lissy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WP(C).No. 6854 of 2008(N) ------------------------{OS.91/2004 OF THE SUB COURT, KATTAPPANA} .................... PETITIONER(S): --------------- CHELLAMMA, W/O LATE BHASKARAN, AGED 66 YEARS,OLANICKAL HOUSE, MARIYAPURAM KARA,THANKAMANY VILLAGE, UDUMPANCHOLA TALUK,IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASSIA RESPONDENT(S): --------------- 1. SEBASTIAN S/O VARKEY, AGED 51 YEARS, RESIDING AT VAYALIL HOUSE, NIRMALA CITY KARA,KATTAPPANA VILLAGE UDUMPANCHOLA TALUK,IDUKKI DISTRICT. 2. LISSY, AGED 48, W/O SEBASTIAN, VAYALIL HOUSE, NIRMLA CITY KARA,KATTAPPANA, UDUMPANCHOLA TALUK,IDUKKI DISTRICT. R1 & R2 ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).No. 6854 of 2008 :: 2 ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1: TRUE PHOTO COPY OF THE AGREEMENT DTD. 8.04.2004. EXT.P2: TRUE PHOTO COPY OF THE SALE DEED DATED 31.10.2005. EXT.P3: TRUE PHOTO COPY OF THE AGREEMENT DATED 31.10.2003. EXT.P4: TRUE PHOTO COPY OF THE WRITTEN STATEMENT BEFORE THE LOWER COURT DATED 5.10.2007. EXT.P5: TRUE PHOTO COPY OF THE AMENDMENT PETITION DATED 11.9.2007. EXT.P6: TRUE PHOTO COPY OF THE OBJECTION DATED 28.8.2007. EXT.P7: TRUE PHOTO COPY OF THE ORDER DATED 19.10.2007. EXT.P8: TRUE PHOTO COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT IN O.S.91/04 BEFORE THE SUB COURT, KATTAPPANA. ## **RESPONDENTS' EXHIBITS: NIL** //true copy// P.S. To Judge SK/- ## S.S.SATHEESACHANDRAN, J. ## ---------------------------------------------------- ## W.P.(C)No.6854 of 2008 ## --------------------------------------------------Dated this the 16th day of February, 2010 ## JUDGMENT Petitioner is the first defendant in O.S.No.91/04 on the file of the Sub Court, Kattapana. Suit is one for specific performance of an agreement for sale, and the respondents are the plaintiffs. Parties entered into Ext.P1 agreement dated 31.7.2003 by which the plaintiffs agreed to exchange their property having an extent of 4.59 acres in lieu of 3.81 acre owned and possessed by the defendants. Out of the 4.59 acres belinging to the plaintiff, 3 acres of land was registered holding and the rest 1.59 acres of land was covered by a new patta. Similarly out of the 3.81 acres belonging to the defendant, she had a patta only over 1.60 acres and the rest was non-patta land with possessory right. The parties resolved to register transfer deeds in terms of the exchange of their properties agreed upon, on or before 31.7.2003, executing Ext.P1 agreement. Later, by Ext.P2 agreement dated 1.8.2003, the time for registration of the conveyance deeds was extended up to 31.10.003. On 30.10.2003 parties executed Ext.P3 agreement extending the time to effect ## W.P.(C)No.6854 of 2008 :: 2 :: registration by 31.01.2004. There is no dispute between the parties that on execution of Ext.P1 agreement they had exchanged the properties covered by that agreement. In Ext.P3 agreement providing for extension of time up to 31.10.2003, an additional covenant was also entered into that in the event of non-correction of the re-survey records relating to the property exchanged by the plaintiffs to the defendants, the defendants will return the extent of land specified which had been obtained from the plaintiffs to rectify that deficiency. Alleging that in view of the default of the defendant, the registration of the conveyance in terms of the excharge could not be carried out plaintiffs laid the above suit for a decree for specific performance of Exts.P1 and P3 agreements. 2. Resisting the suit claim petitioner/defendant filed a written statement traversing the allegations raised in the plaint and impeaching the entitlement of the plaintiffs to the decree sought for. Ext.P4 is the copy of the written statement filed on 5.10.2004. Petitioner/defendant later filed Ext.P5 amendment application to the written statement canvassing a counter claim seeking a declaration that Exts.P1 and P3 agreement are void. The declaration by way of ## W.P.(C)No.6854 of 2008 ## :: 3 :: setting forth a counter claim amending the written statement was sought for by the defendant contending that there was fraud and mis-representation in entering into the agreements insofar as the new patta land having an extent of 1.59 acres of land belonging to the plaintiffs could not have been conveyed by them in view of the Assignment Rules. Similarly, the non-patta land of 2.21 acres belonging to the 1[st] defendant, according to her, is also inalienable. In the affidavit sworn to in support of the amendment of the written statement to raise the counter claim, the petitioner/1[st] defendant has averred that the fruad with respect to Exts.P1 and P3 agreements came to her knowledge only on 4.10.2004. Amendment of the written statement sought for by the 1[st] respondent was resisted by the plaintiffs filing Ext.P6 objections, in which among other contentions, it was contended that the amendment sought for is barred by limitation. The learned Sub Judge, after considering Ext.P5 application in the light of Ext.P6 objections and hearing counsel on both sides, dismissed that application by Ext.P7 order holding that the claim for amendment is barred by limitation. Propriety and correctness of Ext.P7 is challenged in the writ petition, invoking the ## W.P.(C)No.6854 of 2008 ## :: 4 :: supervisory jurisdiction vested with this court under Article 227 of the Constitution. 3. I heard the counsel on both sides. 4. Inviting my attention to Article 59 of the Limitation Act, the learned counsel for the petitioner/1[st] defendant contended that the court below went wrong in holding that the proposed amendment is barred by limitation. Reliance is also placed on **Prem Singh v. Birbal {2006(2) K.L.T. 863 (SC)}** by the counsel to urge that the proposed amendment raising the counter claim moved within a period of three years from the date of knowledge contending that the agreement is inexecutable in view of the interdictions placed under law, and that the agreements are void, is perfectly maintainable. On the other hand, the learned counsel for the plaintiffs submitted that if the amendment is allowed, the counter caim will relate back to three years from the date of filing of the original written statement, and in that case, serious prejudice and hardship would be caused to the plaintiffs in the suit. The learned counsel for the plaintiffs also contended, placing reliance on Order VIII Rule 6A of the Code of Civil Procedure, that a counter claim ## W.P.(C)No.6854 of 2008 :: 5 :: could be raised by the defendants only in respect of any cause of action accruing in their favour against the plaintiffs either before the filing of the written statement or the time provided for delivering their evidence. At any rate, according to the learned counsel, in the given facts of the case, no interference with Ext.P7 order is warranted, invoking the supervisory jurisdiction vested with this court. 5. I have considered the submissions made by the counsel with reference to Ext.P7 order and the exhibits produced in the writ petition. First of all, it has to be pointed out that a counter claim can be raised in a suit as againstthe plaintiff under Order VIII Rule 6A of the Code of Civil Procedure in respect of any cause of action which had accrued in favour of the defendant before the filing of the written statement or delivering of his defence. What is of significance is the cause of action and not the filing of the written statement, nor the time fixed for delivering of the defence. So much so, even after filing of the written statement, it is open to the defendant to raise a counter claim in the very same suit, provided the cause of action for raising such counter claim has arisen before ## W.P.(C)No.6854 of 2008 ## :: 6 :: the filing of the written statement or before the time fixed for delivery of the defence. 6. Perusing Ext.P5 amendment application, it is noticed that the date of knowledge when the petitioner/defendant got knowledge of the legal hurdle in registering of the conveyance deed in termsof the agreement was stated only in the affidavit and not in the proposed amendment to the written statement. It is also noticed that previous written statement was filed on 5.10.2004. The date of knowledge of such legal bar is shown in the affidavit as 4.10.2004. No particulars as to the circumstances under which the defendant got knowledge of the inalienability of the portion of the land belonging to her and also that of the plaintiffs is stated in the affidavit, leave alone in the proposed amendment. Order VIII Rule 6A of the Code of Civil Procedure is only an enabling provision empowering the defendant to raise in the very same suit any claim against the plaintiff, subject to the conditions imposed by the rule for having adjudication of all disputes between the parties in the very same suit. No defendant is having any statutory right to insist that his counter claim should be entertained in the suit filed by the other, as he has an alternate ## W.P.(C)No.6854 of 2008 :: 7 :: efficacious remedy of filing a suit against the opposite party as provided by law. In the given facts of the case where the parties have exchanged their properties soon after exection of Ext.P1 agreement, and the registration of the document was extended by mutual agreement by the parties from time to time, the proposed amendment to the written statement already filed to set up a counter claim cannot be considered as bona fide especially where particulars how the knowledge of the inexecutability of the conveyance deeds was obtained are not stated in the affidavit sworn to in the amendment application. Though I do not approve of the reasoning of the court below in Ext.P7 order holding that the amendment application is barred by limitation, I find that declining the entertainment of the amendment application cannot be found fault with. I do express such a view for the reason that in case the proposed amendment canvassed is entertained, it will complicate the issues involved in the suit as questions may arise whether even on the plea of fraud the first agreement Ext.P1 could have been impeached by the defendant after she had filed her written statement on 5.10.2004. On the date of the amendment, if a fresh suit was ## W.P.(C)No.6854 of 2008 ## :: 8 :: filed in view of the previous written statement already filed by the defendant, a plea of fraud canvassed for entertaining the relief canvassed necessarily has to be examined with reference to the contentions advanced in the written statement. When that be so, a challenge against Ext.P1, after filing of Ext.P4 written statement, to contend that it is vitiated by fraud on the entertainability of such a new defence by way of amendment belatedly, may call for serious scrutiny. 7. I find no interference with Ext.P7 order declining the amendment of the written statement canvassed by the petitioner/1[st] defendant by the court below is warranted invoking the writ jurisdiction of this court. Writ petition is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE //true copy// sk/-