P. Thankamma v. Sajitha G. Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 OP(C).No. 107 of 2014 (O) -------------------------AGAINST THE ORDER IN OS 124/2013 of SUB COURT, PALA PETITIONER(S): ----------------- P.THANKAMMA, AGED 70 YEARS W/O.LATE K.P.SANKARAN NAIR RESIDING AT PARUTHIYIL HOUSE POONJAR NADUBHAGAM VILLAGE, POONJAR VADAKKEKARA KARA MEENACHIL TALUK, KOTTAYAM DISTRICT BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): ------------------ 1. SAJITHA G NAIR D/O.GOPALAKRISHNAN NAIR RESIDING AT VETTIKKATTU HOUSE, BHARANANGANAM VILLAGE EDAPPALLY KARA, EDAPPADY PO, MEENACHIL TALUK KOTTAYAM DISTRICT NOW ILLEGALLY AND UNATHORISEDLY OCCUPYING AND STAYING IN THUNDATHIL KAROTTU (BUILDING NO.2/66 OF POONJAR GRAMA PANCHAYAT) POONJAR NADUBHAGOM VILLAGE VADAKKEKARA KARA, MEENACHIL TALUK - 686 589 2. KRISHNENDU(MINOR), AGED 3 YEARS D/O.IST DEFENDANT SAJITHA G.NAIR RESIDING AT VETTIKKATTU HOUSE, BHARANANGANAM VILLAGE EDAPPALLY KARA, EDAPPADY PO, MEENACHIL TALUK KOTTAYAM DISTRICT REPRESENTED BY HER GUARDIAN AND MOTHER SAJITHA G.NAIR D/O.GOPALAKRISHNAN NAIR RESIDING AT VETTIKKATTU HOUSE, BHARANANGANAM VILLAGE EDAPPALLY KARA, EDAPPADY PO, MEENACHIL TALUK KOTTAYAM DISTRICT - 686 589 3. K.B.GOPALAKRISHNAN NAIR, AGED 55 YEARS RESIDING AT VETTIKKATTU HOUSE, BHARANANGANAM VILLAGE EDAPPALLY KARA, EDAPPADY PO, MEENACHIL TALUK KOTTAYAM DISTRICT NOW ILLEGALLY AND UNATHORISEDLY OCCUPYING AND STAYING IN THUNDATHIL KAROTTU (BUILDING NO.2/66 OF POONJAR GRAMA PANCHAYAT) POONJAR NADUBHAGOM VILLAGE VADAKKEKARA KARA, MEENACHIL TALUK - 686 589 OP (C) No.107/2014 : 2 : 4. SUBHA W/O.K.G.GOPALAKRISHNAN NAIR RESIDING AT VETTIKKATTU HOUSE, BHARANANGANAM VILLAGE EDAPPALLY KARA, EDAPPADY PO, MEENACHIL TALUK KOTTAYAM DISTRICT NOW ILLEGALLY AND UNATHORISEDLY OCCUPYING AND STAYING IN THUNDATHIL KAROTTU (BUILDING NO.2/66 OF POONJAR GRAMA PANCHAYAT) POONJAR NADUBHAGOM VILLAGE VADAKKEKARA KARA, MEENACHIL TALUK - 686 589 R1 -R 4 BY ADV. SRI.JOHN JOSEPH VETTIKAD R1 -R 4 BY ADV. SRI.C.JOSEPH JOHNY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(C).No. 107 of 2014 (O) -------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- EXHIBIT P1 COPY OF THE PLAINT IN OS NO. 124/2013 BEFORE THE SUB COURT PALA - EXHIBIT P2 COPY WRITTEN STATEMENT FILED BY THE RESPONDENTS IN OS NO.124/2013 BEFORE THE SUB COURT PALA - EXHIBIT P3 COPY OF ORDER DATED 8/10/2013 IN OP NO. 194/2013 OF THE FAMILY COURT, PALA - EXHIBIT P4 COPY OF THE IA NO.1842/2013 IN OS NO. 124/2013 BEFORE THE SUB COURT PALA EXHIBIT P5 COPY OF THE OBJECTION TO EXT.P4 FILED BY THE PETITIONER EXHIBIT P6 COPY OF THE ORDER DATED16/12/2013 IN IA NO. 1842/2013 IN OS NO.124/2013 OF THE SUB COURT PALA RESPONDENT(S)' EXHIBITS : NIL. ------------------------------ //TRUE COPY// P.S. TO JUDGE. “C.R.” **==> picture [295 x 64] intentionally omitted <==** **==> picture [126 x 14] intentionally omitted <==** Can the defendants set up by way of counter claim a prayer for setting aside a document in a suit by the plaintiff for recovery of possession under Section 6 of the Specific Relief Act, 1963 ? Is the Court denuded of the power to exclude the counter claim after the same is permitted to be set up by way of amendment to the written statement? 2. The suit in O.S.No.124/2013 on the file of the court of the Subordinate Judge of Pala is filed for recovery of possession under Section 6 of the Specific Relief Act, 1963 ('the Act' for short). The defendants in the suit are none other than the daughter-in-law, grand daughter and the parents of the daughter-in-law of the plaintiff. The petitioner herein who is the plaintiff claims title and possession over the plaint schedule property under a Gift Deed (Document No.2146/2011) executed by her son since deceased. The suit is filed on 12.4.2013 alleging that the plaintiff was forcibly dispossessed from the plaint schedule O.P.(C) No.107/2014 2 property on 5.4.2013 by the defendants. 3. The respondents herein who are the defendants initially filed a written statement on 26.7.2013 and later filed I.A.No.1842/2013 on 20.11.2013 for amendment of the written statement. A prayer for setting aside the Gift Deed (Document No.2146/2011) is set up by way of counter claim in the amendment to the written statement. The defendants allege that the cause of action for the counter claim arose on 25.5.2013 when only they knew about the alleged execution of the Gift Deed. The fact that the cause of action for the counter claim arose before the defendants have delivered their defence in the instant case is not in dispute at all. The defendants maintain that it has become necessary to challenge the very Gift Deed under which the plaintiff claims title and possession over the plaint schedule property. 4. The plaintiff however vehemently objects to the amendment of the written statement on the ground that such a counter claim cannot be permitted to be set up in a suit of this nature. The contention of the plaintiff is that only her dispossession within a O.P.(C) No.107/2014 3 period of six months prior to the institution of the suit need be probed under Section 6 of the Act. The scope of enquiry would get enlarged if the counter claim to set aside the Gift Deed is permitted to be set up by way of amendment to the written statement. The plaintiff points out that even an appeal or review of any order or decree passed in the suit is barred under Section 6(3) of the Act. But a decree passed in the counter claim is open to an appeal and the parties would therefore be forced to file a Civil Revision Petition and an appeal suit which is incongruous. The plaintiff contends that the defendant can after all file a fresh suit to recover possession on title notwithstanding the decree in the suit based on dispossession under Section 6(4) of the Act. 5. The court below has by the order impugned allowed the application for amendment of the written statement filed to set up by way of counter claim which is impugned by the plaintiff. I heard Mr.P.C.Haridas, Advocate on behalf of the petitioner and Mr.John Joseph Vettikkad, Advocate on behalf of the respondents in extenso in this Original Petition. O.P.(C) No.107/2014 4 6. It is true that the plaintiff has only to prove his previous possession and his dispossession otherwise than in due course of law within a period of 6 months from the date of institution of the suit. A probe into the title of the plaintiff or the nature of possession is totally alien to the enquiry in a suit under Section 6 of the Act. Section 6 (3) of the Act barring appeal or review from any order or decree passed in the suit indicates that a speedy remedy for illegal dispossession is envisaged. The Supreme Court has even recently held in Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan [2013 (9) SCC 221] as follows:- “A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time 6 months prior to the date of filing of the suit. The legislative concern underlying Section 6 of O.P.(C) No.107/2014 5 the Specific Relief Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” 7. That the suit under Section 6 of the Act partakes the character of a summary proceeding is further fortified by the fact that a fresh suit on title for recovery of possession is not barred. This is explicit from Section 6(4) of the Act as has also - been reiterated in ITC Ltd. v. Adarsh Co operative Housing Society Ltd. [2013 (10) SCC 169]. Thus the enquiry in the suit under Section 6 of the Act and in the counter claim to set aside the Gift Deed vastly differs in its nature and scope. Also the decree in the suit is only open to challenge in a Civil Revision Petition whereas the decree in the counter claim is open to an appeal. But does it mean that a counter claim for setting aside the Gift Deed cannot be permitted to be set up in a suit for possession under Section 6 of the Act ? I am afraid not since there is O.P.(C) No.107/2014 6 no such limitation to set up by way of counter claim under Order VIII Rule 6-A of the Code of Civil Procedure, 1908 ('the CPC' for short). 8. The prescribed limitations to set up by way of counter claim under Order VIII Rule 6-A CPC are the following:- - i) The counter claim should be against the claim of the plaintiff. - ii) The counter claim should be in respect of a cause of action which accrued before the defendants delivered their defence. - iii) The counter claim should not exceed the pecuniary limits of the jurisdiction of the court. None of the aforesaid limitations are breached in the instant case and there is hence no reason as to why the counter claim for setting aside the Gift Deed cannot be permitted to be set up. The counter claim need not relate to the original cause of action and can even be in respect of a different property. [See: Jag Mohan Chawla v. Dera Radha Swami Satsang (1996 (4) SCC 699)] The court below has therefore not erred in allowing I.A.No.1842/2013 filed for amending the written statement in order to set up by way of counter claim in O.P.(C) No.107/2014 7 the suit filed under Section 6 of the Act. 9. That does not however conclude that the counter claim set up for setting aside the Gift Deed should necessarily be considered along with the suit for recovery of possession. There is power abundant in the Court to exclude the counter claim on motion made by the plaintiff at any time before issues are settled in relation thereto. The same is obvious from Order VIII Rule 6-C of the CPC which is as follows:- “6-C 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 counterclaim 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 counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.” The relevant considerations for excluding a counter claim are the following:- - i) The adjudication of the counter claim would embarrass the trial of the suit. - ii) The filing of the counter claim by the defendants is not fair to the plaintiff. O.P.(C) No.107/2014 8 iii) The counter claim is likely to create complications and prolong the trial. No straight jacket formulae can be adopted for exclusion of the counter claim and it is essentially within the realm of the discretion of the Court of course on motion made by the plaintiff. It is for the Court to assess the fact situation and decide as to whether the counter claim is to be excluded relegating the defendants to an independent suit. The fact that different remedies are provided against the decree in the suit and in the counter claim is not germane at all for the purpose of the exclusion of counter claim. Nothing precludes the parties from filing a Civil Revision Petition and an Appeal Suit independently against the verdicts in the suit and the counter claim and later club together the cases for hearing. 10. The mere fact that the counter claim has been permitted to be set up by way of amendment to the written statement does not disable the court from excluding it later. The counter claim can be excluded under Order VIII Rule 6-C of the CPC only after it is set up and before the issues are settled in relation to O.P.(C) No.107/2014 9 it on an application by the plaintiff. A separate application by the plaintiff is warranted and any objection at an earlier time would not suffice. [See M/s.Ballabh Dass's Case (AIR 1997 Raj 199)]. Mr.Justice Arijit Pasayat has succintly laid down the law in this regard in Nabakishore Sahu v. State of Orissa [AIR 1992 Orissa 303] as follows:- “..........While considering the desirability to accept the prayer for amendment, consideration of the Court centred round the primary question whether there was change in substratum of the dispute. It was not explicitly concerned with the question whether the claim is to be disposed of by way of counter-claim or an independent suit. The considerations are undoubtedly different. Merely because an amendment was permitted to bring in a counter-claim, it cannot be said that the question of its mode of disposal was also adjudicated notwithstanding a plea to that effect having been taken in the objection filed by the plaintiffs to the prayer for amendment.” Different parameters apply while considering the applications for amendment of the written statement to set up a counter claim and to exclude the same before issues are settled in relation to it. Suffice it to O.P.(C) No.107/2014 10 say that the plaintiff is entitled to file an application for exclusion of the counter claim notwithstanding the fact that the same is set up. The motion if any made in that regard by the plaintiff shall be dealt with in accordance with law before the issues are settled in the counter claim. The Original Petition is dismissed. No costs. V.CHITAMBARESH, Judge. nj.