C.K. Ravikumar v. Baby Rose and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** ## **OP(C) NO. 185 OF 2021** **OS 1293/2013 OF I ADDITIONAL MUNSIFF COURT** ## **THIRUVANANTHAPURAM** ## **PETITIONER/S:** C.K.RAVIKUMAR AGED 68 YEARS SON OF KUTTAN NAIR, KOLLAMM VILAKATHU VEEDU, KARAMANA, MELARANOOR MURI, THYCADU VILLAGE, THIRUVANANTHAPURAM NOW RESIDING AT HOUSE NO.51/2753, KARAMANA P.O., MELARANOOR MURI, THYCADU VILLAGE, THIRUVANANTHAPURAM - 695 014. BY ADVS. S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SMT.K.V.RAJESWARI ## **RESPONDENT/S:** 1 BABY ROSE AGED 66 YEARS W/O.WILSON, KUZHIVILA VEEDU, PAVAKKOTTUKONAM, VILAVOORKAL DESOM, VILAVOORKAL VILLAGE, THIRUVANANTHAPURAM, NOW RESIDING AT ASOKA, HOUSE NO.MSRA, 2D, THACHOTUKAVU, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM - 695 571. 2 J.WILSON AGED 68 YEARS S/O.JAMES, KUZHIVILA VEEDU, PAVAKKOTTUKONAM, VILAVOORKAL DESOM, VILAVOORKAL VILLAGE, THIRUVANANTHAPURAM, NOW RESIDING AT ASOKA, HOUSE NO.MSRA 2D, THACHOTUKAVU, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM - 695 571. 3 S.SASIDHARAN PILLAI AGED 67 YEARS S/O.LATE SREEDHARAN PILLAI, ROHINI, THADIKKADU EARAM, THADIKKADU P.O., ANCHAL, KOLLAM-691306, KOLLAM DISTRICT. 2 **O.P.(C) No.185 of 2021** BY ADVS. SRI.S.V.RAJAN SRI.R.SANTHOSH (VARKALA) SHRI.S.HEMANTH SANTHOSH SRI.A.CHANDRA BABU SHRI.MUKESH KUMAR G. SRI.SANIL JOSE SRI.A.N.PREMLAL **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON 10.08.2021 DELIVERED THE FOLLOWING:** **O.P.(C) No.185 of 2021** 3 ## **JUDGMENT** **Dated this the 10[th] day of August, 2021** **The petitioner is the plaintiff in O.S.No.1293 of 2020 of the 1st Additional Munsiff Court, Thiruvananthapuram. The suit is filed, seeking to declare Sale Deed Nos.131 and 132 of 2012 of SRO, Malayinkeezhu, as null and void. It is averred in the plaint that the plaintiff is in absolute ownership and enjoyment of 70 cents of land in Vilavoorkkal Village, by virtue of the Sale Deed executed in his favour by the court based on the strength of the decree in O.S.No.1388 of 1994 of the 1[st] Additional Sub Court, Thiruvananthapuram. The decree was passed in a specific performance suit filed by the petitioner against respondents 1 and 2. Aggrieved by the judgment and decree in O.S.No.1388 of 1994, respondents 1 and 2 filed** **O.P.(C) No.185 of 2021** 4 **appeal before this Court. The appeal was dismissed, confirming the judgment and decree, with the modification that the plaintiff should deposit an amount of Rs.15,00,000/- along with the amount already paid towards balance sale consideration. Accordingly, the amount was deposited and the sale deed was executed through court. In the meanwhile, respondents 1 and 2 clandestinely transferred the property to the third respondent under Document Nos.131 and 132 of 2012 of Malayinkeezhu SRO. Hence, the suit for setting aside the sale deeds.** **2. The first respondent filed written statement in the suit. No written statement was filed by the second respondent. Later, respondents 1 and 2 together filed a counterclaim, praying for a declaration that the sale deeds executed by them in favour of the third respondent are not void and** **O.P.(C) No.185 of 2021** 5 **that the sale deed executed in favour of the petitioner through court is a conditional sale deed in respect of the encumbrances. Thereafter, the third respondent requested the court to frame additional issues. The court rejected the prayer and the third respondent approached this Court. By Ext.P4 judgment dated 13.03.2018, the court below was directed to frame the issues as sought for by the third respondent and to dispose the suit as expeditiously as possible.** **3. After the suit was listed for trial, respondents 1 and 2 raised objection as to the valuation shown in the plaint and questioned the pecuniary jurisdiction of the court. Their objection having been turned down, respondents 1 and 2 approached this Court in O.P.(C) No.1953 of 2018. By Ext.P5 judgment dated 24.01.2019, the original petition was dismissed, refusing to** **O.P.(C) No.185 of 2021** 6 **exercise the discretionary jurisdiction under Article 227, since respondents 1 and 2 had not raised their objection till the suit was listed for trial.** **4. The third respondent approached this Court thereafter by filing CRP No.267 of 2019, challenging the order rejecting his application for re-opening of evidence. By Ext.P6 order dated 28.03.2019, the civil revision petition was dismissed by this Court, again observing that the contention was raised when the suit was listed for trial. Undeterred, the third respondent filed an interlocutory application in the court below, seeking to examine a witness. By Ext.P7 order dated 26.11.2020, the court below dismissed the application finding that the particulars sought to be proved by the cited witnesses are not at issue and reopening of the evidence will drag the trial** **O.P.(C) No.185 of 2021** 7 **unnecessarily.** **5. On 05.11.2020, the court below closed the evidence after examining respondents 1 and 3. On 30.11.2020, the second respondent filed Ext.P11 application seeking to re-open the evidence. Thereafter, the first respondent filed an additional written statement on 11.12.2020. The second respondent filed her written statement on 05.01.2021, along with an application seeking leave for filing the written statement. An application was also filed on 05.01.2021 for accepting the additional documents produced by respondents 1 and 2. By Ext.P13 order dated 05.01.2021, the court below allowed the second respondent’s prayer for re-opening the evidence. The objection of the petitioner on the ground that the second respondent having not filed written statement in the case was repelled, finding that** **O.P.(C) No.185 of 2021** 8 **the second respondent having filed her counterclaim, there is no bar in the second respondent adducing evidence.** **6. Sri.S.Easwaran, learned Counsel for the petitioner submitted that the attempt of the respondents is to protract the suit endlessly and that, by issuing Ext.P13 order, the court below has played into their hands. It is pointed out that way back in the year 2018 this Court had directed the court below to dispose of the suit expeditiously. The application for re-opening of evidence filed by the third respondent was dismissed thereafter, as the application was filed after the case was listed for trial. The court below itself had rejected the application for reopening of evidence filed by the third respondent, finding that the attempt of the respondents was to unnecessarily drag the trial. It is contended that** **O.P.(C) No.185 of 2021** 9 **in the above factual background, there was no justification for having allowed the prayer for re-opening the evidence. It is also contended that the second respondent having failed to file the written statement, her counterclaim is not maintainable. Hence, the finding of the court below that the second respondent can adduce evidence based on the counterclaim, is unsustainable. In support of the contention, reliance is placed on the decision of the Apex Court in** _**Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350]**_ **.** **7. Sri.S.V.Rajan, learned Counsel for respondents 1 and 2 submitted that the second respondent is an aged lady, having health issues. Therefore, she could not be present in court to give evidence during trial, particularly in the light of the advisory issued by the Government for** **O.P.(C) No.185 of 2021** 10 **curbing the spread of Covid pandemic, which required the senior citizens to remain at home. It is urged that the second respondent had filed her written statement on 03.09.2016, which unfortunately was not made part of the records of the case and therefore, she had to file her written statement again on 05.01.2021. It is contended that without filing an application under Order VIII Rule 6C of CPC for exclusion of the second respondent’s counterclaim, the petitioner cannot challenge the maintainability of the counterclaim. The decision in** _**Shanti Rani Das Dewanjee v. Dinesh Chndra Day [(1997) 8 SCC 174]**_ **, is relied on to contend that a counterclaim can be filed even after filing the written statement. Finally it is submitted that the court below having exercised its discretion by allowing the second respondent to give evidence, no** **O.P.(C) No.185 of 2021** 11 **interference is warranted in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.** **8. The suit is of the year 2013 and respondents had approached this Court at various stages of the suit. In the judgment dated 13.03.2018 in O.P.No.369 of 2018, this Court had directed to dispose of the suit expeditiously. Thereafter, OP(C)No.1953 of 2018 and CRP No.267 of 2019 were dismissed finding respondents 1 and 2 to have approached this court after the case was listed for trial. By Ext.P7 order dated 26.11.2020, the trial court itself dismissed the application for reopening of evidence filed by the third respondent. It is pertinent to note that Ext.P11 application for reopening of evidence was filed by the second respondent immediately thereafter, viz; on 30.11.2020. Surprisingly, none** **O.P.(C) No.185 of 2021** 12 **of the earlier orders, either of this Court or of the trial court, is seen considered or even adverted to in the impugned order.** **9. In order to answer the contention that a counterclaim is not maintainable without filing written statement, it is necessary to carefully analyse Order 8 Rule 6A of CPC, extracted here under;** _**“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 counterclaim is in the nature of a claim for damages or not:**_ _**Provided that such counter-claim shall not exceed the pecuniary limits of the**_ **O.P.(C) No.185 of 2021** 13 _**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.”**_ **Order 8 Rule 6A(1) requires the defendant to raise the counterclaim before delivering his defence or before the time limit for delivering his defence has expired. As per Order 8 Rule 6B it is obligatory for the defendant to state specifically in his written statement that he seeks to rely upon any ground in support of his right of counterclaim. Expatiating on the point, the Honourable Supreme Court in** _**Ramesh Chand (supra)**_ **O.P.(C) No.185 of 2021** 14 ## **has held as under:** _**“25.Under Rule 8 any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off or counter-claim may be raised by the defendant or plaintiff, as the case may be, in his written statement. Under Rule 9 no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the court and upon such terms as the court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.**_ _**26. A perusal of the above said provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of Rule 6-A are—**_ _**“A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, … before the defendant has delivered his defence or before the time limited for delivering his defence has expired….”**_ _**These words go to show that a pleading by way of counterclaim runs with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A setoff has to be pleaded in the written statement.The counter-claim must necessarily find its place in the written**_ **O.P.(C) No.185 of 2021** 15 _**statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither can the written statement be filed as of right nor a counter-claim can be allowed to be raised, for the counterclaim under Rule 6-A must find its place in the written statement. The court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counterclaim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time.”**_ **Going by the provision and the precedent, I find merit in the contention of the learned Counsel for the petitioner that a counterclaim cannot be entertained without the defendant filing a written statement. It is true that in** _**Shanti Rami Das Dewanjee v. Dinesh Chandra Day [1997 (8) SCC 174]**_ **,** **O.P.(C) No.185 of 2021** 16 **the Apex Court has held that counterclaim can be filed even after filing of the written statement. But here, the position is that the second respondent’s written statement was not on record,** **as on the date on which she filed her counterclaim.** **10. It is a fact that as the advisory issued by the Government, senior citizens were required to remain at home for some time. If the second respondent was prevented from appearing before the court for reason of the advisory, she should have necessarily brought this to the notice of the court before closure of evidence. All the more so, since the first respondent, who is none other than her husband, is appearing through the same Counsel and had participated in the trial. Therefore, as rightly contended by the learned Counsel for the petitioner, the application for reopening of** **O.P.(C) No.185 of 2021** 17 **evidence filed after closure of evidence can be perceived only as an attempt to further protract the proceedings.** **For the aforementioned reasons, Ext.P13 order is set aside and the original petition is allowed. The court below shall dispose of the suit without further delay.** **Sd/-** **V.G.ARUN JUDGE** **Scl/** **O.P.(C) No.185 of 2021** 18 ## **APPENDIX OF OP(C) 185/2021** |**APPENDIX OF OP(C) 185/2021**|**APPENDIX OF OP(C) 185/2021**| |---|---| |PETITIONER EXHIBITS|| |EXHIBIT P1|TRUE COPY OF PLAINT IN OS NO.1388 OF| ||2013.| |EXHIBIT P2|TRUE COPY OF WRITTEN STATEMENT FILED BY| ||THE 2ND RESPONDENT DATED 2/01/2014.| |EXHIBIT P3|TRUE COPY OF COUNTER CLAIM FILED BY 1ST| ||AND 2ND RESPONDENT DATED 03/09/2016.| |EXHIBIT P4|TRUE COPY OF JUDGMENT DATED 13/03/2018| ||IN OP(C) NO.369/2018.| |EXHIBIT P5|TRUE COPY OF JUDGMENT DATED 24/01/2019| ||IN O.P.(C) NO.1953/2018.| |EXHIBIT P6|TRUE COPY OF ORDER DATED 28/03/2019 IN| ||C.R.P.NO.267/2019.| |EXHIBIT P7|TRUE COPY OF ORDER DATED 26/11/2020 IN| ||I.A.NO.6/2020 IN OS NO.1293/2013.| |EXHIBIT P8|TRUE COPY OF AFFIDAVIT FILED BY THE 1ST| ||RESPONDENT DATED 11/12/2020.| |EXHIBIT P9|TRUE COPY OF WRITTEN STATEMENT FILED BY| ||THE 1ST RESPONDENT DATED 05/01/2021.| |EXHIBIT P10|TRUE COPY OF PETITION & AFFIDAVIT DATED| ||05/01/2021 FILED BY THE 1ST RESPONDENT.| |EXHIBIT P11|TRUE COPY OF PETITION AND AFFIDAVIT| ||DATED 30/11/2020 FILED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P12|TRUE COPY OF PETITION & AFFIDAVIT DATED| ||05/01/2021 FILED BY THE 1ST AND 2ND| ||DEFENDANT.| |EXHIBIT P13|TRUE COPY OF ORDER DATED 05/01/2021 OF| ||1ST ADDITIONAL MUNSIFF,| ||THIRUVANANTHAPURAM IN IA 10 OF 2020 IN| ||OS 1293 OF 2013.| |RESPONDENT EXHIBITS|| |EXHIBIT R1|TRUE COPY OF THE ORDER DATED 23/03/2020| ||OF THE HON'BLE SUPREME COURT OF INDIA| ||IN SUP MOTU WRIT PETITION (CIVIL)| ||NO.3/2020.|