IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6854 of 2008(N)
1. CHELLAMMA, W/O LATE BHASKARAN,
... Petitioner
Vs
1. SEBASTIAN S/O VARKEY, AGED 51 YEARS,
... Respondent
2. LISSY, AGED 48, W/O SEBASTIAN,
For Petitioner :SRI.A.C.DEVASSIA
For Respondent :SRI.P.N.RAMAKRISHNAN NAIR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :16/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C)No.6854 of 2008
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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
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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
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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 1st 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/1st 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 1st 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
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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/1st 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
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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
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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
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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
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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/1st
defendant by the court below is warranted invoking the writ
jurisdiction of this court.
Writ petition is dismissed.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
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