{"id":20724,"date":"2003-12-31T00:00:00","date_gmt":"2003-12-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subban-vs-varadarajan-on-31-december-2003"},"modified":"2015-08-30T17:22:58","modified_gmt":"2015-08-30T11:52:58","slug":"subban-vs-varadarajan-on-31-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subban-vs-varadarajan-on-31-december-2003","title":{"rendered":"Subban vs Varadarajan on 31 December, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Subban vs Varadarajan on 31 December, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 31\/12\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE A.KULASEKARAN\n\nCRP (PD) No. 1417 of 2003\nand CRP (PD) Nos., 1418 and 1421 of 2003\nand\nC.M.P. No. 9936 of 2003\n\nCRP PD No. 1417 of 2003\n\nSubban                                 ... Petitioner\n\n-Vs-\n\n1. Varadarajan\n2. Dhanaraj @ Kannaiyan\n3. Prakash\n4. Santhi\n5. Kaveri Ammal\n6. D. Jayaraman                                         ...Respondents<\/pre>\n
CRP PD No. 1418 of 2003<\/p>\n
Subban                                                          … Petitioner<\/p>\n
Versus<\/p>\n
1. Kaveri Ammal\n<\/p>\n
2. D. Jayaraman\n<\/p>\n
3. Varadarajan\n<\/p>\n
4. Dhanaraj\n<\/p>\n
5. Prakash\n<\/p>\n
6. Santhi                                                               …Respondents<\/p>\n
CRP PD No. 1418 of 2003<\/p>\n
1. Kaveri Ammal\n<\/p>\n
2. D. Jayaraman                                         …Petitioners<\/p>\n
Versus<\/p>\n
1. Subban\n<\/p>\n
2. Santhi                                                               …Respondents<\/p>\n
        Revisions under Section 115 CPC against  the  Order  dated  25-11-2002
\nmade in I.A.  No.  489 of 2000, I.A.  No.  1124 of 1998 and I.A.  No.  1162 of
\n2002 in O.S.    No.    361  of  1994  on  the  file  of District Munsif Court,
\nThiruchengode.\n<\/p>\n
!For Petitioner :       Mr.  Valliappan for M\/s.  Sarvabhauman
\n                                Associates in CRP 1417 & 1418\/2003<\/p>\n
                                Mr.  Malaisamy for Mrs.  Mythuily Suresh
\n                                in CRP 1421\/03<\/p>\n
^For Respondents:       Mr.  R.  Jagadeesan for RR1 to 3 in
\n                                CRP No.  1417 of 2003<\/p>\n
                                No appearance for other respondents<\/p>\n
:COMMON ORDER<\/p>\n
        The defendants 1 and 2 in O.S.  No.  361  of  1994  are  the  revision
\npetitioners in CRP No.  1421 of 2003.  The first Plaintiff in the said suit is
\nthe revision petitioner  in CRP No.  1417 & 1418 of 2003.  The Plaintiffs have
\nfiled the suit for declaration to declare that the first plaintiff is entitled
\nto take his tractors, lorries and bullock carts through the  suit  cart  track
\nportion marked  as ABCDEFGH in yellow colour running in the suit S.No.  159 of
\nBommanpatti Village, Thiruchengode Taluk to reach his portion of lands situate
\nin the suit S.NO.159 shown in the plaint rough plan and for other reliefs.\n<\/p>\n
        2.      Pending suit, the plaintiffs filed I.A.  No.  1124 of 1998  to
\nwithdraw  the  suit  as against the defendants 3 to 5 which was opposed by the
\ndefendants 3 to 5.  Later, the defendants 3 to 5 filed I.A.  No.  489 of  2000
\nseeking  permission of the Court for filing additional written statement\/cross
\nobjection.  The Plaintiffs filed another  I.A.    No.    1  162  of  2002  for
\nrecording  the  compromise  entered into between them with defendants 1 and 2.
\nAll the applications were taken up for hearing together by  the  trial  court,
\ncommon  arguments  were  advanced  by the counsel for both sides, however, the
\ntrial court, on 25-11-2002 passed separate orders dismissing  the  application
\nI.A.  No.  1124  of  1998  and  I.A.    No.    1162  of  2002  and allowed the
\napplication I.A.  No.  489 of 2 000 as prayed for with costs.    Aggrieved  by
\nthe  orders  passed  in the above said three applications, the above revisions
\nare filed.\n<\/p>\n
        3.      The learned counsel appearing for  both  sides  in  the  above
\nrevisions advanced  common  arguments, hence this common order is passed.  For
\nthe sake of convenience, the parties are referred as arrayed in the suit.\n<\/p>\n
        4.      CRP No.  1417 of 2003 is directed against the  order  allowing
\nthe application I.A.   No.  489 of 2000 which was filed by the defendants 3 to
\n5 under Order 8 Rule  9  CPC  seeking  permission  of  the  Court  to  receive
\nadditional written  statement.    The reasons adduced by the defendants 3 to 5
\nwas that the suit was filed in respect of the cart track  existing  in  Survey
\nNo.159  and  in  the  said  cart  track  they  and the other defendants namely
\ndefendants 1 and 2 have a right  to  use.    They  have  jointly  opposed  the
\nplaintiffs from  using the said cart track.  Later the defendants 1 and 2 have
\ncolluded with the  plaintiffs  and  created  an  alleged  compromise  with  an
\nintention  to  deprive of the defendants 1 and 2, hence the additional written
\nstatement is warranted.  The trial court allowed the said application  on  the
\nground  that  1  +  cents  land  belonged to the defendants 3 to 5 is part and
\nparcel of 0.91 cents allegedly belonged to the defendants 1 and 2 wherein  the
\ncart track is located as such the additional written statement is required for
\neffective adjudication.   The trial court also permitted the defendants 3 to 5
\nto make a counter claim along with the written  statement  and  accordingly  a
\ncourt fee of Rs.61\/- was also paid by them.\n<\/p>\n
        5.      CRP No.  1418 of 2003 relates to I.A.  No.  1124 of 1998 which
\nwas  filed  by  the Plaintiffs under Order 23 Rule 1 CPC seeking permission of
\nthe Court to withdraw the suit in O.S.  No.  361 of 1994  in  so  far  as  the
\ndefendants 3 to  5  are  concerned.  It is stated in the said I.A.  that after
\nfiling the suit, the Plaintiffs and defendants 1 and 2  have  entered  into  a
\ncompromise  and  laid  a  new  cart  track  in  their lands after removing the
\nstanding trees thereon as such  the  defendants  3  to  5  are  not  necessary
\nparties.  The trial court dismissed the said application on the ground that no
\nnew  cart  track  was laid as alleged and the cart track in dispute is running
\nthrough their land hence they are necessary parties.\n<\/p>\n
        6.      CRP No.  1421 of 2003 is directed against the Order passed  in
\nI.A.  No.    1162  of 2002 filed by the plaintiffs for recording compromise on
\nthe ground that after filing the suit, the plaintiffs and defendants 1  and  2
\nhave  laid a new cart track after removing the standing trees and entered into
\na compromise and prayed the Court to pass a decree in terms of the compromise.
\nThe said I.A.  was dismissed by the trial court on the ground that I.A.    No.
\n489 of 2000  was  allowed and I.A.  No.  1124 of 1998 was dismissed, hence the
\ncompromise cannot be recorded until all the defendants file a compromise  memo
\nduly signed.\n<\/p>\n
        7.      The Plaintiffs  filed  I.A.    No.1124 of 1998 to withdraw the
\nsuit against the defendants 3 to 5, which were opposed by the defendants 3  to
\n5 by  filing  necessary  counter.  The defendants 3 to 5 thereafter filed I.A.
\nNo.   489  of  2000  for  reception  of  additional  written   statement\/cross
\nobjection.  Subsequently, the  plaintiffs  filed  I.A.   No.  1162 of 2002 for
\nrecording compromise.  Hence, it is relevant to look  into  the  corresponding
\nprovisions of law governing the issues in all the three interim applications.\n<\/p>\n
        8.      The relevant provision to withdraw the suit is Order 23 Rule 1
\n(1 ) which runs as follows:-\n<\/p>\n
“Order 23 Rule  1.  Withdrawal of suit or abandonment of part of claim.  – (1)
\nAt any time after the institution of a suit, the plaintiff may as against  all
\nor any of the defendants abandon his suit or abandon a part of his claim:\n<\/p>\n
        Provided  that  where the plaintiff is a minor or other person to whom
\nthe provisions contained in Rules 1 to 14 of Order XXXII extend,  neither  the
\nsuit  nor  any  part  of the claim shall be abandoned without the leave of the
\nCourt.\n<\/p>\n
        9.      Filing of additional written statement is governed by Order  8
\nRule 6-A, 6-D and 9 which runs as follows:-\n<\/p>\n
“Order VIII Rule 6-A.  Counter claim by Defendant:  (1) A  defendant in a suit
\nmay, in addition to his right of pleading a set off under Rule 6,  by  way  of
\ncounter  claim  against  the  claim  of  the  plaintiff, any right or claim in
\nrespect of a cause of action accruing to the defendant against  the  plaintiff
\neither  before  or  after  the filing of the suit but before the defendant has
\ndelivered his defence or before the time limited for  delivering  his  defence
\nhas expired,whether such counter claim is in the nature of a claim for damages
\nor not.\n<\/p>\n
        Provided that such counter-claim shall not exceed the pecuniary limits
\nof the jurisdiction of the Court.\n<\/p>\n
        (2)     Such  counter claim shall have the same effect as a cross-suit
\nso as to enable the Court to pronounce a final judgment in the same suit, both
\non the original claim and on the counter claim.\n<\/p>\n
`       (3)     The Plaintiff shall be at liberty to file a written  statement
\nin  answer  to the counter-claim of the defendant within such period as may be
\nfixed by the Court.\n<\/p>\n
        (4)     The counter-claim shall be treated as a plaint and governed by
\nthe rules applicable to plaints.\n<\/p>\n
6-D.    Effect of discontinuance of suit  –  If  in  any  case  in  which  the
\ndefendant  sets  up  a  counter-claim,  the  suit  of the plaintiff is stayed,
\ndiscontinued or dismissed, the counter-claim  may  nevertheless  be  proceeded
\nwith.\n<\/p>\n
9.      Subsequent pleadings.    –  No  pleading  subsequent  to  the  written
\nstatement of a defendant other than by  way  of  defence  to  a  set  off  (or
\ncounter-claim)  shall  be  presented except by the leave of the Court and upon
\nsuch terms as the Court thinks fit, but the Court may at any  time  require  a
\nwritten  statement or additional written statement from any of the parties and
\nfix a time for presenting the same.\n<\/p>\n
        10.     The relevant provision relating to recording of compromise  is
\nOrder 23 Rule 3 CPC which runs as follows:-\n<\/p>\n
        “Compromise of  suit.  – Where it is proved to the satisfaction of the
\nCourt that a suit has been adjusted wholly or in part by any lawful  agreement
\nor  compromise,  in  writing  and signed by the parties or where the defendant
\nsatisfies  the  plaintiff  in  respect  of  the  whole  or  any  part  of  the
\nsubject-matter of the suit,the Court shall order such agreement, compromise or
\nsatisfaction  to  be recorded, and shall pass a decree in accordance therewith
\nso far as it relates to the parties to the suit, whether or  not  the  subject
\nmatter of the agreement, compromise or satisfaction is the same as the subject
\nmatter of the suit.\n<\/p>\n
        Provided that where it is alleged by one party and denied by the other
\nthan an adjustment or satisfaction has been arrived at, the Court shall decide
\nthe  question; but no adjournment shall be granted for the purpose of deciding
\nthe question, unless the Court, for reasons to  be  recorded,  thinks  fit  to
\ngrant such adjournment.\n<\/p>\n
        11.     Under  Order  23 Rule 1 CPC, a plaintiff can abandon a suit or
\nabandon part of his claim as a matter of right without the permission  of  the
\nCourt.   In such case, he will be precluded from suing again on the same cause
\nof action.  He cannot abandon a suit or abandon part of his claim reserving to
\nhimself a right to bring a fresh suit.  The question of  permission  comes  in
\nonly  when  the  plaintiff seeks permission to sue afresh on the same cause of
\naction.  Different consideration may arise  where  a  set-off  may  have  been
\nclaimed  under  Order  8  CPC  or  a  counter-claim  may  have  been filed, if
\npermissible by the procedural law applicable to the proceedings governing  the
\nsuit.\n<\/p>\n
        12.     In the  decision  reported  in  (M\/s.  Hulas Rai Baij Nath Vs.
\nFirm K.B.  Bass and Co.) AIR 1968 Supreme Court 111, in  para-2  it  was  held
\nthat  there is no provision in the Code of Civil Procedure, which requires the
\nCourt to refuse permission to  withdraw  the  suit,  but  it  is  possible  in
\ndifferent consideration where a set-off have been claimed under Order 8 CPC or
\na  counter-claim  have  been  filed,  if  permissible  by  the  procedural law
\napplicable to the proceedings governing the suit.\n<\/p>\n
        13.     In the case on hand, the defendants 3 to  5  have  filed  I.A.
\nNo.  4 89 of 2000 under Order 8 Rule 9 CPC after filing the written statement.
\nRule  6-A  of  Order 8 confers a statutory defence of set-off to a plaintiff’s
\naction.  A counter-claim is substantially a crossobjection.  A set-off  is  an
\nanswer to the plaintiff’s claim, wholly or protanto.  The defendant may either
\nbefore or after filing of the suit, but before he has delivered his defence or
\nbefore  the  time  limited  for  delivering  his  defence has expired file his
\ncounter-claim.  In such an event, a counter-claim is treated as a  plaint  and
\nis governed by the Rules applicable to Plaint.\n<\/p>\n
        14.     Under  Rule  6-D  of  Order  8  CPC,  even  if the suit of the
\nplaintiff  is  stayed,  discontinued  or  dismissed,  the  counter-claim   may
\nnevertheless  be  proceeded  with  as  in the case of a counter claim, written
\nstatement is really in the nature  of  a  plaint.    In  such  event,  if  the
\nplaintiff’s  suit  is  not pressed or given up or withdrawn or breaks down for
\nany reason whatsoever, the defendant has still a right to get a  decree  of  a
\ncounter-claim as  claimed  in  the  written statement.  If a defendant want to
\nenjoy such right, he is allowed to make his  counter-claim  either  before  or
\nafter  filing  of  the suit, but before he has delivered his defence or before
\nthe time limited for delivering his defence has expired.\n<\/p>\n
        15.     In this case, the defendants 3 to 5  have  filed  the  written
\nstatement on  22-01-1996.    After  lapse of about four years from the date of
\nfiling the written statement, they have filed the application I.A.  No.    489
\nof  2000  without  proper  explanation  for  such  delay, which is against the
\nprovisions of Rule 6-A of Order 8.  The trial court  erroneously  allowed  the
\nsaid application without considering the above said aspects.\n<\/p>\n
        16.     A  conjoint  reading  of  Order 23 Rule 1 (1) and Order 8 Rule
\n6-A, 6-D and 9 CPC makes it clear that the plaintiff cannot be prevented  from
\nwithdrawing  the  suit, if the counter-claim \/ set off has been filed in terms
\nof the procedural law.  In this case, the counter-claim is not filed in  terms
\nof  the  procedural  law,  hence  the trial court is not correct in dismissing
\napplication I.A.  No.1124 of 1998 filed by the plaintiffs to withdraw the suit
\nas against the defendants 3 to 5.\n<\/p>\n
        17.     The Plaintiffs and defendants 1 and 2  said  to  have  entered
\ninto compromise and they sought for a decree in terms of the compromise, which
\nresulted in filing  the  I.A.No.    1162  of 2002.  It is also their case that
\nafter the suit, they have laid a new  cart  track  in  their  land,  which  is
\ncomprised in Survey No.159.  The trial court dismissed the said application on
\nthe  ground  that  the  defendants  3  to  5  have  not  signed the compromise
\nmemo,besides that I.A.No.  489  of  2000  and  I.A.    No.1124  of  1998  were
\ndismissed.   No  doubt,  under  Order  23  Rule  3 CPC, the compromise must be
\nbetween the parties t o the litigation.  A compromise to  which  some  of  the
\nparties to  a suit alone are parties is not necessarily invalid.  A compromise
\nbetween some parties alone cannot affect the position of other parties to  the
\nsuit since they are neither bound by it nor are entitled to enforce it.\n<\/p>\n
        18.     In  the  case  on  hand,  it  is pleaded by the plaintiffs and
\ndefendants 1 and 2 that they  have  laid  a  new  cart  track  in  their  land
\nsubsequent to  the  suit.    Where a party has no further interest in the suit
\nproperty, his consent is not necessary for the compromise  of  a  suit.    The
\nrecords  placed  before  me  by  the  defendants  3 to 5 are not sufficient to
\ndisprove the contention of the plaintiffs and defendants 1 and 2.    No  clear
\nfinding given by the trial court pertaining to the said aspect.  Hence, I have
\nno  hesitation  in  setting  aside the order passed by the trial court in I.A.
\nNo.  1162 of 2002.  However, when the right  of  the  defendants  3  to  5  is
\naffected  by the act of laying new cart track by the plaintiffs and defendants
\n1 and 2, certainly they are entitled to  file  a  fresh  suit  to  seek  their
\nremedy. In  view of the above said observation, the trial court is directed to
\nrefund the court fee paid by the defendants 3 to 5, if any, forthwith.\n<\/p>\n
        19.     For the foregoing reasons, all the revisions are allowed.   No
\ncosts.  Consequently, connected CMP is closed.\n<\/p>\n
rsh<\/p>\n
Index :  Yes
\nInternet :  Yes<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Subban vs Varadarajan on 31 December, 2003 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-20724","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSubban vs Varadarajan on 31 December, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subban-vs-varadarajan-on-31-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subban vs Varadarajan on 31 December, 2003 - 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