IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31/12/2003 CORAM THE HONOURABLE MR.JUSTICE A.KULASEKARAN CRP (PD) No. 1417 of 2003 and CRP (PD) Nos., 1418 and 1421 of 2003 and C.M.P. No. 9936 of 2003 CRP PD No. 1417 of 2003 Subban ... Petitioner -Vs- 1. Varadarajan 2. Dhanaraj @ Kannaiyan 3. Prakash 4. Santhi 5. Kaveri Ammal 6. D. Jayaraman ...Respondents
CRP PD No. 1418 of 2003
Subban … Petitioner
Versus
1. Kaveri Ammal
2. D. Jayaraman
3. Varadarajan
4. Dhanaraj
5. Prakash
6. Santhi …Respondents
CRP PD No. 1418 of 2003
1. Kaveri Ammal
2. D. Jayaraman …Petitioners
Versus
1. Subban
2. Santhi …Respondents
Revisions under Section 115 CPC against the Order dated 25-11-2002
made in I.A. No. 489 of 2000, I.A. No. 1124 of 1998 and I.A. No. 1162 of
2002 in O.S. No. 361 of 1994 on the file of District Munsif Court,
Thiruchengode.
!For Petitioner : Mr. Valliappan for M/s. Sarvabhauman
Associates in CRP 1417 & 1418/2003
Mr. Malaisamy for Mrs. Mythuily Suresh
in CRP 1421/03
^For Respondents: Mr. R. Jagadeesan for RR1 to 3 in
CRP No. 1417 of 2003
No appearance for other respondents
:COMMON ORDER
The defendants 1 and 2 in O.S. No. 361 of 1994 are the revision
petitioners in CRP No. 1421 of 2003. The first Plaintiff in the said suit is
the revision petitioner in CRP No. 1417 & 1418 of 2003. The Plaintiffs have
filed the suit for declaration to declare that the first plaintiff is entitled
to take his tractors, lorries and bullock carts through the suit cart track
portion marked as ABCDEFGH in yellow colour running in the suit S.No. 159 of
Bommanpatti Village, Thiruchengode Taluk to reach his portion of lands situate
in the suit S.NO.159 shown in the plaint rough plan and for other reliefs.
2. Pending suit, the plaintiffs filed I.A. No. 1124 of 1998 to
withdraw the suit as against the defendants 3 to 5 which was opposed by the
defendants 3 to 5. Later, the defendants 3 to 5 filed I.A. No. 489 of 2000
seeking permission of the Court for filing additional written statement/cross
objection. The Plaintiffs filed another I.A. No. 1 162 of 2002 for
recording the compromise entered into between them with defendants 1 and 2.
All the applications were taken up for hearing together by the trial court,
common arguments were advanced by the counsel for both sides, however, the
trial court, on 25-11-2002 passed separate orders dismissing the application
I.A. No. 1124 of 1998 and I.A. No. 1162 of 2002 and allowed the
application I.A. No. 489 of 2 000 as prayed for with costs. Aggrieved by
the orders passed in the above said three applications, the above revisions
are filed.
3. The learned counsel appearing for both sides in the above
revisions advanced common arguments, hence this common order is passed. For
the sake of convenience, the parties are referred as arrayed in the suit.
4. CRP No. 1417 of 2003 is directed against the order allowing
the application I.A. No. 489 of 2000 which was filed by the defendants 3 to
5 under Order 8 Rule 9 CPC seeking permission of the Court to receive
additional written statement. The reasons adduced by the defendants 3 to 5
was that the suit was filed in respect of the cart track existing in Survey
No.159 and in the said cart track they and the other defendants namely
defendants 1 and 2 have a right to use. They have jointly opposed the
plaintiffs from using the said cart track. Later the defendants 1 and 2 have
colluded with the plaintiffs and created an alleged compromise with an
intention to deprive of the defendants 1 and 2, hence the additional written
statement is warranted. The trial court allowed the said application on the
ground that 1 + cents land belonged to the defendants 3 to 5 is part and
parcel of 0.91 cents allegedly belonged to the defendants 1 and 2 wherein the
cart track is located as such the additional written statement is required for
effective adjudication. The trial court also permitted the defendants 3 to 5
to make a counter claim along with the written statement and accordingly a
court fee of Rs.61/- was also paid by them.
5. CRP No. 1418 of 2003 relates to I.A. No. 1124 of 1998 which
was filed by the Plaintiffs under Order 23 Rule 1 CPC seeking permission of
the Court to withdraw the suit in O.S. No. 361 of 1994 in so far as the
defendants 3 to 5 are concerned. It is stated in the said I.A. that after
filing the suit, the Plaintiffs and defendants 1 and 2 have entered into a
compromise and laid a new cart track in their lands after removing the
standing trees thereon as such the defendants 3 to 5 are not necessary
parties. The trial court dismissed the said application on the ground that no
new cart track was laid as alleged and the cart track in dispute is running
through their land hence they are necessary parties.
6. CRP No. 1421 of 2003 is directed against the Order passed in
I.A. No. 1162 of 2002 filed by the plaintiffs for recording compromise on
the ground that after filing the suit, the plaintiffs and defendants 1 and 2
have laid a new cart track after removing the standing trees and entered into
a compromise and prayed the Court to pass a decree in terms of the compromise.
The said I.A. was dismissed by the trial court on the ground that I.A. No.
489 of 2000 was allowed and I.A. No. 1124 of 1998 was dismissed, hence the
compromise cannot be recorded until all the defendants file a compromise memo
duly signed.
7. The Plaintiffs filed I.A. No.1124 of 1998 to withdraw the
suit against the defendants 3 to 5, which were opposed by the defendants 3 to
5 by filing necessary counter. The defendants 3 to 5 thereafter filed I.A.
No. 489 of 2000 for reception of additional written statement/cross
objection. Subsequently, the plaintiffs filed I.A. No. 1162 of 2002 for
recording compromise. Hence, it is relevant to look into the corresponding
provisions of law governing the issues in all the three interim applications.
8. The relevant provision to withdraw the suit is Order 23 Rule 1
(1 ) which runs as follows:-
“Order 23 Rule 1. Withdrawal of suit or abandonment of part of claim. – (1)
At any time after the institution of a suit, the plaintiff may as against all
or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom
the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the
suit nor any part of the claim shall be abandoned without the leave of the
Court.
9. Filing of additional written statement is governed by Order 8
Rule 6-A, 6-D and 9 which runs as follows:-
“Order VIII Rule 6-A. Counter claim by Defendant: (1) A defendant in a suit
may, in addition to his right of pleading a set off under Rule 6, 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 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.
6-D. Effect of discontinuance of suit – If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.
9. Subsequent pleadings. – 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 the 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.
10. The relevant provision relating to recording of compromise is
Order 23 Rule 3 CPC which runs as follows:-
“Compromise of suit. – Where it is proved to the satisfaction of the
Court that a suit has been adjusted wholly or in part by any lawful agreement
or compromise, in writing and signed by the parties or where the defendant
satisfies the plaintiff in respect of the whole or any part of the
subject-matter of the suit,the Court shall order such agreement, compromise or
satisfaction to be recorded, and shall pass a decree in accordance therewith
so far as it relates to the parties to the suit, whether or not the subject
matter of the agreement, compromise or satisfaction is the same as the subject
matter of the suit.
Provided that where it is alleged by one party and denied by the other
than an adjustment or satisfaction has been arrived at, the Court shall decide
the question; but no adjournment shall be granted for the purpose of deciding
the question, unless the Court, for reasons to be recorded, thinks fit to
grant such adjournment.
11. Under Order 23 Rule 1 CPC, a plaintiff can abandon a suit or
abandon part of his claim as a matter of right without the permission of the
Court. In such case, he will be precluded from suing again on the same cause
of action. He cannot abandon a suit or abandon part of his claim reserving to
himself a right to bring a fresh suit. The question of permission comes in
only when the plaintiff seeks permission to sue afresh on the same cause of
action. Different consideration may arise where a set-off may have been
claimed under Order 8 CPC or a counter-claim may have been filed, if
permissible by the procedural law applicable to the proceedings governing the
suit.
12. In the decision reported in (M/s. Hulas Rai Baij Nath Vs.
Firm K.B. Bass and Co.) AIR 1968 Supreme Court 111, in para-2 it was held
that there is no provision in the Code of Civil Procedure, which requires the
Court to refuse permission to withdraw the suit, but it is possible in
different consideration where a set-off have been claimed under Order 8 CPC or
a counter-claim have been filed, if permissible by the procedural law
applicable to the proceedings governing the suit.
13. In the case on hand, the defendants 3 to 5 have filed I.A.
No. 4 89 of 2000 under Order 8 Rule 9 CPC after filing the written statement.
Rule 6-A of Order 8 confers a statutory defence of set-off to a plaintiff’s
action. A counter-claim is substantially a crossobjection. A set-off is an
answer to the plaintiff’s claim, wholly or protanto. The defendant may either
before or after filing of the suit, but before he has delivered his defence or
before the time limited for delivering his defence has expired file his
counter-claim. In such an event, a counter-claim is treated as a plaint and
is governed by the Rules applicable to Plaint.
14. Under Rule 6-D of Order 8 CPC, even if the suit of the
plaintiff is stayed, discontinued or dismissed, the counter-claim may
nevertheless be proceeded with as in the case of a counter claim, written
statement is really in the nature of a plaint. In such event, if the
plaintiff’s suit is not pressed or given up or withdrawn or breaks down for
any reason whatsoever, the defendant has still a right to get a decree of a
counter-claim as claimed in the written statement. If a defendant want to
enjoy such right, he is allowed to make his counter-claim either before or
after filing of the suit, but before he has delivered his defence or before
the time limited for delivering his defence has expired.
15. In this case, the defendants 3 to 5 have filed the written
statement on 22-01-1996. After lapse of about four years from the date of
filing the written statement, they have filed the application I.A. No. 489
of 2000 without proper explanation for such delay, which is against the
provisions of Rule 6-A of Order 8. The trial court erroneously allowed the
said application without considering the above said aspects.
16. A conjoint reading of Order 23 Rule 1 (1) and Order 8 Rule
6-A, 6-D and 9 CPC makes it clear that the plaintiff cannot be prevented from
withdrawing the suit, if the counter-claim / set off has been filed in terms
of the procedural law. In this case, the counter-claim is not filed in terms
of the procedural law, hence the trial court is not correct in dismissing
application I.A. No.1124 of 1998 filed by the plaintiffs to withdraw the suit
as against the defendants 3 to 5.
17. The Plaintiffs and defendants 1 and 2 said to have entered
into compromise and they sought for a decree in terms of the compromise, which
resulted in filing the I.A.No. 1162 of 2002. It is also their case that
after the suit, they have laid a new cart track in their land, which is
comprised in Survey No.159. The trial court dismissed the said application on
the ground that the defendants 3 to 5 have not signed the compromise
memo,besides that I.A.No. 489 of 2000 and I.A. No.1124 of 1998 were
dismissed. No doubt, under Order 23 Rule 3 CPC, the compromise must be
between the parties t o the litigation. A compromise to which some of the
parties to a suit alone are parties is not necessarily invalid. A compromise
between some parties alone cannot affect the position of other parties to the
suit since they are neither bound by it nor are entitled to enforce it.
18. In the case on hand, it is pleaded by the plaintiffs and
defendants 1 and 2 that they have laid a new cart track in their land
subsequent to the suit. Where a party has no further interest in the suit
property, his consent is not necessary for the compromise of a suit. The
records placed before me by the defendants 3 to 5 are not sufficient to
disprove the contention of the plaintiffs and defendants 1 and 2. No clear
finding given by the trial court pertaining to the said aspect. Hence, I have
no hesitation in setting aside the order passed by the trial court in I.A.
No. 1162 of 2002. However, when the right of the defendants 3 to 5 is
affected by the act of laying new cart track by the plaintiffs and defendants
1 and 2, certainly they are entitled to file a fresh suit to seek their
remedy. In view of the above said observation, the trial court is directed to
refund the court fee paid by the defendants 3 to 5, if any, forthwith.
19. For the foregoing reasons, all the revisions are allowed. No
costs. Consequently, connected CMP is closed.
rsh
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