Hymavathi v. Ambili K. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939 OP(C).No. 1299 of 2017 (O) --------------------------AGAINST THE ORDER DATED 23.3.2017 IN IA NO.1234/2016 IN OS NO. 225/2015 of PRINCIPAL SUB COURT,ERNAKULAM PETITIONER: ------------- HYMAVATHI, DAUGHTER OF LATE KOCUHAMMU AMMA AND W/O.LATE PADMANABHA PILLAI, AGED 71 YEARS, RESIDING AT "KEDARAM", KADEKKUZHY, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED RESPONDENTS: -------------- 1. AMBILI K., DAUGHTER OF LATE INDUKALADHARA MENON, AGED 37 YEARS, KADEKKUZHI, INDU, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK, PIN -682304. 2. GIRIJA DEVI, DAUGHTER OF LATE KOCHAMMU AMMA, AGED 74 YEARS, SANTHI, MAVELIPURAM, KAKKANADU P.O., THRIKKAKARA VILLAGE, KANAYANNUR TALUK, PIN-682030. 3. SREEDEVI K., DAUGHTER OF LATE SAROJINI AMMA, AGED 53 YEARS, KADEKKUZHI, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK, PIN-682304. 4. MAYADEVI K., DAUGHTER OF LATE SAROJINI AMMA, AGED 50 YEARS, KADEKKUZHI, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK, PIN -682304.. 5. ASHA K., DAUGHTER OF LATE SAROJINI AMMA, AGED 46 YEARS, KADEKKUZHI, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK,PIN -682304.. 6. CHITRA K., DAUGHTER OF LATE INDUKALADHARA MENON, AGED 40 YEARS, KADEKKUZHI, NIKUNHJAM, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK,PIN -682304.. R1 BY ADVS. SRI.M.M.MONAYE SRI.DESI MATTHAI R2,R3,R4,R5 BY ADVS. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1299 of 2017 (O) --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.225/2015 FILED BY THE 1ST RESPONDENT BEFORE THE PRINCIPAL SUB COURT, ERNAKULAM. EXHIBIT P2- TRUE COPY OF THE VERIFIED STATEMENT FILED BY THE PETITIONER IN EXHIBIT P1 SUIT. EXHIBIT P3- TRUE COPY OF WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE PETITIONER IN EXHIBIT P1 SUIT. EXHIBIT P4- TRUE COPY OF I.A.1234/2017 FILED BY THE PETITIONER IN EXHIBIT P1 SUIT FOR ACCEPTING EXHIBIT P3 WRITTEN STATEMENT AND COUNTER CLAIM ON FILE. EXHIBIT P5- TRUE COPY OF THE ORDER PASSED BY THE PRINCIPAL SUB COURT IN EXHIBIT P4 APPLICATION ON 23/03/2017. ## RESPONDENT(S)' EXHIBITS ----------------------- EXT.R1(a) TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 18.11.2016 FILED BY THE 1ST RESPONDENT IN OS 225/2015 EXT.R1(b) TRUE COPY OF THE PLAINT IN OS 119/2011 EXT.R1(c) TRUE COPY OF THE JDUGMENT DATED 30.6.2011 IN OS 119/2011 EXT.R1(d) TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 31.7.2012 EXT.R1(e) PROCEEDINGS BEFORE THE SUB COURT IN OS 225/2015 FROM THE FILING OF THE SUIT TILL 23.3.2017 WHEN THE PETITIONER'S APPLICATION FOR FILING WRITTEN STATEMENT WAS DISALLOWED BY THE COURT EXT.R1(f) TRUE COPY OF THE SAID WRITTEN STATEMENT FILED BY THE DEFENDANTS 1, 3, 4 AND 5 //TRUE COPY// ## **A.HARIPRASAD, J. -------------------------------------O.P.(C) No.1299 of 2017** ## **-------------------------------------Dated this the 31[st] day of July, 2017** ## **JUDGMENT** Heard the learned counsel on both sides. 2. Challenge in this case is against Ext.P5 order passed by the Subordinate Judge, Ernakulam on I.A.No.1234 of 2017 in O.S.No.225 of 2015. 3. Short facts are thus: Petitioner is the 2[nd] defendant in Ext.P1 suit. 1[st] respondent is the plaintiff. Property scheduled to the plaint belonged to one Vijayalakshmi. She died as a widow and issuless. Plaintiff is the daughter of Indukaladhara Menon, who was brother of deceased Vijayalakshmi. Defendants 1 and 2 are sisters of deceased Vijayalakshmi. Defendants 3 to 5 are children of deceased Sarojini Amma, who was yet another sister of deceased Vijayalakshmi. 6[th] defendant is the sister of the plaintiff. Parties are Hindus governed by Hindu Succession Act, 1956 (in short, “the Act”). Claiming a share over Vijayalakshmi's property, 1[st] respondent approached the court below with a suit for partition. In that matter, the petitioner filed Ext.P2 written statement. In the written statement, petitioner denied 1[st] respondent's right to claim any property as a legal heir of deceased Vijayalakshmi. Contentions raised by the learned 2 OP(C) No.1299 of 2017 counsel for the petitioner are two fold. Firstly, deceased Vijayalakshmi had executed a Will in the year 2004 bequeathing her properties in favour of her siblings. It is therefore contended by the petitioner that since there was no property left behind by deceased Vijayalakshmi at the time of her death, the suit for partition filed by the 1[st] respondent is not maintainable. Secondly, plaintiff is not a legal heir of deceased Vijayalakshmi and by operation of Section 15(1)(b) of the Act, the property, if at all any left behind by Vijayalakshmi, will go to legal heirs of her husband. After filing the written statement, the plaint was amended as per Ext.R1(a). It necessitated filing an additional written statement. Ext.P3 additional written statement was filed by the petitioner raising certain specific contentions. In Ext.P3, a counter claim was raised by the petitioner urging that the 1[st] respondent has no right over the properties shown in the schedule to the plaint and the properties are not partiable at the instance of the 1[st] respondent. Further, it is pointed out in the additional written statement that certain items left behind by Indukaladhara Menon are liable to be partitioned because he died during the life time of his mother who was a heir and after his mother's death, the share acquired by her reverted back to the petitioner and respondents. Those properties are liable to be partitioned. Virtually the contention raised by the petitioner is that the 3 OP(C) No.1299 of 2017 property shown in the plaint schedule are not available for partition and the properties shown in the schedule to the additional written statement are available for partition. 4. Court below after considering the rival contentions as per Ext.P5 order rejected reception of the additional written statement with a counter claim. At the outset, it has to be pointed out that the petitioner has a right to file a written statement after the plaint was amended. Only question is whether the counter claim now raised can be entertained at this point of time. 5. The provision relevant in this context is Order VIII Rule 6A of the Code of Civil Procedure, 1908 (in short, “CPC”), which reads thus: _“_ _**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_ 4 OP(C) No.1299 of 2017 _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.”_ Order VIII Rule 6C CPC is also relevant. It is excerpted hereunder: “ _**Exclusion of counter-claim** .- Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.”_ 5. Learned counsel for the 1[st] respondent contended that the court below rightly refused to entertain the counter claim after filing the 5 OP(C) No.1299 of 2017 original written statement. To support this contention, a decision rendered by the Supreme Court in **Gayathri Women's Welfare Association v. Gowramma and another (2011 KHC 4036)** has been pressed into service. Of course, the facts in the decision are different from the facts in this case. However, law regarding filing a counter claim has been stated in paragraphs 33 and 34 of the decision in the following words: _“33. We may notice here the observations made by this Court in the case of Ramesh Chand (supra) which may be of some relevance. Upon considering the ratio of earlier cases in the case of Sangaram Singh v. Election Tribunal, Kotah, 1955 KHC 374:AIR 1955 SC 425:1955 (2) SCR 1:1955 (2) MLJ(SC) 3:10 ELR293:1955 MWN 844, Arjun Singh v. Mohindra Kumar, 1964 KHC 520:AIR 1964 SC 993:1964(5) SCR 946:1964 (2) An LT 341:ILR 1964 (2) All 590 and Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, 1964 KHC 410:AIR 1964 SC 11:1964(2) SCR 567, it was held that a right to make a counter claim is statutory and a counter claim is not admissible in a case which is admittedly not within the statutory provisions. It is further observed that :_ _"Looking to the scheme of O.8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-_ 6 OP(C) No.1299 of 2017 _claim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter-claim which in the light of R.1 read with R.6A would be a counter-claim against the claim of the appellant preferred in exercise of legal right conferred by R.6A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter-claim though referable to R.6A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under O.6 R.17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under O.8 R.9 CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading_ 7 OP(C) No.1299 of 2017 _would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counterclaim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counterclaim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced."_ _These observations make it clear that generally speaking the counter claim not contained in the original written statement may be refused to be taken on record, especially if issues have already been framed. In the present case, the counter claim is sought to be introduced at the stage of appeal before the High Court._ _34. In such circumstances, we are unable to accept the conclusions of the High Court that the discretion exercised by the trial court was in any manner, illegal or arbitrary in rejecting the counter_ 8 OP(C) No.1299 of 2017 _claim of the respondents. We may notice here the observations of this Court in the case of Rohit Singh (supra) which are as follows :-_ _"A counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so-called counterclaim of Respondents 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction."_ _These observations would show that the dismissal of the counter claim by the trial court was neither illegal nor without jurisdiction. In fact the direction issued by the High Court would clearly run counter to the aforesaid observations. In the aforesaid case, this Court was considering a situation where the evidence had been closed, arguments on behalf of the respondents had been concluded, the suit was adjourned for arguments of the appellants, the suit was dismissed for default. Subsequently, it was restored. Thereafter the respondents filed an application for amending the written statement. The counter claim was filed by the intervener. In these circumstances, it was observed that at this stage no counter claim could be entertained.”_ OP(C) No.1299 of 2017 9 6. To contradict the above contentions, learned counsel for the petitioner relied on **Mahendra Kumar v. State of M.P. (AIR 1987 SC 1395)** . In that case the High Court took a view that after filing a written statement, no counter claim was maintainable. This view was repelled by the Supreme Court in the following lines: _“The next point that remains to be considered is whether R.6A(1) of O.VIII, Civil P.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R.6A(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.6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. .........”_ This decision has been followed by this Court in **Indira Bhai v. Madhusoodanan (2016 (1) KLT S.N. 95, Case No.103)** . 7. Another decision relied on by the learned counsel for the petitioner is **Sabhari Syndicate v. Catholic Syrian Bank Ltd. (2001 KHC** **159)** which laid down a proposition that a counter claim can be filed, 10 OP(C) No.1299 of 2017 provided the cause of action had accrued to the defendant before he had delivered his defence or before the time limited for delivering his defence has expired. There cannot be any dispute to these propositions because the provision of law itself says so. 8. The difficulty in this case arises when the petitioner chose to file a counter claim much after casting issues and even after starting trial. The discretion to allow a party to file a counter claim is vested with the court and from Ext.P5 order, I am unable to say that the court below exercised its discretion in a capricious manner. The court has applied its mind to the facts and found that this may cause embarrassment of trial of the suit at its fag end. Going by the principles in **Gayathri Women's Welfare Association** 's case (supra) the discretion vested with the court must be applied in each case depending on the facts and circumstances of each case. In the present case, contention raised by the petitioner is that the 1[st] respondent has no right to get partition in respect of the plaint schedule properties for the aforementioned reasons. It is the further contention of the petitioner/2[nd] defendant that the properties left behind by father of the 1[st] respondent/plaintiff, viz., Indukaladhara Menon, is liable to be partitioned since he was survived by his mother and she died later, whereby the parties to the present suit got rights over her share. It is true OP(C) No.1299 of 2017 11 that the intention of raising a counter claim is to avoid multiplicity of suits. But, in this case, the complex questions raised in the suit and the counter claim would cause embarrassment of trial, especially when the contention was raised towards the end of proceedings. Therefore, I find Ext.P5 order is legally sustainable. It is made clear that the petitioner has every right to challenge partiability of the properties shown in the plaint schedule. Petitioner's right to claim partition in respect of the properties left behind by Indukaladhara Menon, if available, can be raised in a separate proceedings. None of the observations in this judgment will cause hindrance to the establishment of legal right of the petitioner in appropriate proceedings. Court below shall proceed with the case accepting the additional written statement sans the counter claim. Court below shall dispose of the case within a period of one month from the date of production of a copy of this judgment. With these observations, the petition is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**