Vivekanandan v. Meddini and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 9[th] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 FAO (RO) NO. 160 OF 2017 AGAINST THE JUDGMENT & DECREE DATED 28.07.2017 IN AS No.29/2014 OF II ADDITIONAL DISTRICT COURT, KOLLAM AGAINST JUDGMENT & DECREE DATED 2/9/2013 IN O.S.NO.710/2011 OF THE MUNSIFF COURT, KOLLAM. APPELLANT/RESPONDENT/DEFENDANT: VIVEKANANDAN, AGED 58 YEARS, S/o DAMODARAN, VELIYIL VEEDU, ASRAMAM CHERRY, ASARAMAM P.O, KOLLAM EAST VILLAGE, KOLLAM BY ADV J.OM PRAKASH RESPONDENTS/APPELLANTS 1 TO 4 AND 2nd RESPONDENT/PLAINTIFFS: 1 MEDDINI, AGED 60 YEARS, W/o DHANAPALAN, VELANVAYALIL, PRASANTHI NAGAR-55, PATTATHANAM P.O., VADAKKEVIAL VILLAGE, KOLLAM TALUK, KOLLAM 691 021 2 VASAVAN, S/o DHAMODHARAN, DIVYA BHAVAN, AYIRAMTHENGU CHERRY, WARD-16, HOUSE NO 674, KOOTTIKADA P.O., MAYYANADU VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN 691 020 3 SANDANAVALLY, AGED 62 YEARS, W/o BALAKRISHNAN, DR. RAJENDRA NAGAR, HOUSE NO 4/44, OPPOSITE JANATHA COLONY, RAIPUR P.O, MADHYAPRADESH, PIN 461 001 4 KOMALAVALLY, AGED 57 YEARS, D/o SARADA, DR. RAJENDRA NAGAR, HOUSE NO 4/44, OPPOSITE JANATHA COLONY, RAIPUR P.O, MADHYAPRADESH, PIN 461 001 5 VIJAYAKUMAR, AGED 46 YEARS, S/o DAMODHARAN, WARD-1, HOUSE No. 492, VISMAYA BHAVAN, ADICHANELLOOR, TAZHUTHALA VILLAGE, KOTTIYAM P.O, KOLLAM TALUK, KOLLAM DISTRICT, PIN 691 571 R2 BY ADV SRI.VARGHESE C.KURIAKOSE THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR HEARING ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO (RO) No.160 of 2017 2 **CR** ## **JUDGMENT** One of the main questions came up for consideration is with respect to the requirement of a replication in answer to a document relied on by the defendants in their written statement. A suit for partition was dismissed by the trial court on the ground that the beneficiary of Ext.A2 settlement deed was not made as a party to the suit and no challenge was raised either by amending the plaint or by submitting a replication against a Will relied on by the defendant. In appeal, the first appellate court set aside the decree and judgment of the trial court and allowed an amendment application to incorporate additional pleading denying the execution of Ext.B1 Will and remanded the matter back to the trial court, against which the defendant came up in appeal. 2. It is yet another example of delaying and defeating the administration of justice both in the hands of trial court and the first appellate court. Both the courts below had failed to appreciate the FAO (RO) No.160 of 2017 3 evidence adduced with respect to the due execution of Ext.B1 Will by examining one of the attesting witnesses as DW2. This would imply the meaning that the parties were well aware of the dispute involved in the suit and the documents relied on by the defendant, Ext.B1 Will. The attempt made to prove the due execution of Ext.B1 Will by examining one of the attesting witnesses was not even properly taken up either by the trial court or by the first appellate court, but an unnecessary remand was ordered by the first appellate court, that too, by allowing the parties to incorporate pleading by way of amendment against the execution and genuineness of Ext.B1 Will. It really amounts to putting the cart before the horse. Evidence was already adduced by examining one of the attesting witnesses in proof of due execution of the alleged Will. Then what remains is the appreciation of evidence and adjudication. But the first appellate court without adhering to the mandate under Rule 23, 23 A and 24 of Order XLI C.P.C. ordered a remand by setting aside the judgment and decree of the trial court. FAO (RO) No.160 of 2017 4 3. It is submitted that the abovesaid amendment application for incorporating pleading challenging the due execution and genuineness of Ext.B1 Will is really unwarranted as the plaint pleading itself would be sufficient to answer the claim based on Ext.B1. Further, it is submitted that there is no need for submitting a replication or an amendment application disputing the due execution of Ext.B1, especially when the parties have adduced evidence fully knowing the dispute involved pertaining to Ext.B1. 4. A replication is mandated only in answer to a set off or counter claim raised by the defendant. Rule 6 and 6A to 6G of Order VIII C.P.C. is extracted below for reference: ## **“6. Particulars of set-off to be given in written statement.-** (1) Where in a suit for the recovery of money the defendant claims to setoff against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless FAO (RO) No.160 of 2017 5 permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off. (2) **Effect of set-off.-** The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. ## **6A. Counter-claim by defendant.-** (1) A defendant in a suit may, in addition to his right of pleading a setoff 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 pro-nounce a final judgment in the same suit, both on the original claim and on the counter-claim. FAO (RO) No.160 of 2017 6 (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. ## **6B. Counter-claim to be stated.-** Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. ## **6C. Exclusion of counter-claim.-** Where a defendant sets up a counterclaim 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 counterclaim, 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. ## **6D. Effect of discontinuance of suit.-** If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. ## **6E. Default of plaintiff to reply to counter-claim.-** If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in FAO (RO) No.160 of 2017 7 relation to the counter-claim as it thinks fit. ## **6F. Relief to defendant where counterclaim succeeds.-** Where in any suit a set-off or counterclaim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance. ## **6G. Rules relating to written statement to apply.-** The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.” 5. The counter claim essentially is a cross suit with all its legal incidents and consequences attached with the institution of a civil suit. It must be within the pecuniary jurisdiction of the court on which it was raised with the liability to pay the required court fee. There should be a valid cause of action for it. But a different treatment is seen given in the matter of set off from that of a counter claim. Going by the Scheme under Rule 6 and the amended Rules 6A to G, it is clear that the status of a cross suit was not given to a set off claimed by the defendant as there is no provision to proceed with the set off when FAO (RO) No.160 of 2017 8 the suit is stayed or discontinued or dismissed. No provision analogous to Rule 6D is incorporated anywhere under Order VIII C.P.C. in the matter of set off so as to enable the court to proceed with it even after the stay of the suit or its discontinuation or dismissal. On the other hand, it is permissible to proceed with the counter claim in spite of stay of suit, its discontinuance or dismissal by virtue of Rule 6D of Order VIII C.P.C.. There is no analogous provision akin to that of Rule 6D anywhere in Order VIII C.P.C. to proceed with set off in spite of discontinuation of suit either by stay or its dismissal. The scheme and the language employed therein draws a clear distinction between a claim of set off and a counter claim. But in answer to both the claims, a written statement in the form of replication is permissible. In both the cases, the parties would stand bound by the Rules relating to submission of a written statement (replication) in answer to the counter claim or the set off, otherwise, it may attract the “mischief” incorporated under Rule 10 of Order VIII C.P.C. with its limitations as laid FAO (RO) No.160 of 2017 9 down in **Centre for Management Development v. Panayam Grama Panchayath (2017 (1) KLT 609)** . A counter claim or a set off when raised would constitute a composite nature with the suit wherein it was raised and will come under the same compartment of respective pleadings though it is permissible to continue the counter claim even after the stay of the suit or its dismissal or dis-continuation. Necessarily, when it is found that the plaint reading is sufficient to meet the requirement of a separate replication in answer to the counter claim or set off raised, there will not be any necessity for reiterating the very same pleading by way of a replication, wherein the submission of a replication would stand optional. In short, there is no legal impediment in accepting the pleading raised in the plaint in answer to the counter claim or set off raised and sometime, the plaint and its pleading would acquire the character of a replication, when it contains the required defence to be raised in answer to the counter claim or set off. Hence, it cannot be insisted invariably in all cases that there should be a separate replication in answer to the counter claim FAO (RO) No.160 of 2017 10 or set off reiterating the pleading already raised in the plaint so as to reject the mischief under Rule 10 of Order VIII C.P.C.. Necessarily, the court is not expected to render any judgment simply because of the reason that no separate replication was submitted. The plaint pleading as such, in whole, if found to be sufficient to set up a defence as against the counter claim or the set off, there is no necessity to submit a replication reiterating the pleading already raised. Then it would be optional for the plaintiff either to submit a replication or to rely on the plaint pleading itself, especially when the plaint pleading would sufficiently meet the requirement of specific denial or by necessary implication as mandated under Rule 5 of Order VIII C.P.C.. 6. The legal position would be quite different with respect to a document relied on/supplied/furnished by the defendant in his written statement in compliance of Rule 1 A of Order VIII C.P.C.. A mere production of a document along with the written statement cannot be considered as a counter claim or a set off unless the same is specifically FAO (RO) No.160 of 2017 11 raised by the defendant with all its legal incidents. The corollary is that it is not all necessary invariably in all cases to submit a replication without raising any set off or a counter claim by the defendant and a mere production of a document in the written statement either by way of a testamentary instrument or a non-testamentary instrument would stand bound by the rule of evidence rather than the procedural law incorporated under Order VIII C.P.C., more specifically, Rule 6 and its amended provisions – 6A to 6G. The amendment allowed by the first appellate court for incorporating the pleading with respect to Ext.B1 Will raised in the written statement is really unwarranted and cannot be sustained. Further, the omission to consider the evidence adduced by examining the propounder and one of the attesting witnesses is so fatal and not in accordance with the mandate under Rule 23, 23A and 24 of Order XLI C.P.C. The legal position has been settled by this Court in **Gopalakrishnan and Another v. Ponnappan and others [2021 (5) KHC 548]** followed by the decision of the Apex Court in **Bhairab Chandra Nandan v. Ranadhir** FAO (RO) No.160 of 2017 12 **Chandra Dutta (1988 KHC 883)** . Hence, the order of remand will stand set aside. The first appellate court shall take the appeal on file and dispose of the same in accordance with the law in force by addressing and adjudicating all the issues involved including the issues which were omitted to be considered by the trial court based on the legal position settled above. The parties shall appear before the first appellate court on 05/12/2022. The appeal is allowed accordingly. No costs. Sd/- **P.SOMARAJAN JUDGE** sv