Kandasamy Spinning Mills vs O. Padamavathi (Deceased)

R. Mala, J.—The present Civil Revision Petition has been filed challenging the fair and decretal Order dated 19.09.2011 made in I.A. No. 493 of 2011 in O.S. No.552 of 2007 on the file of the II Additional District Munsif Court, Erode.

The Revision Petitioner, who is the Plaintiff in O.S. No.552 of 2007 has filed the said Suit for declaration of title to the Suit properties by adverse possession and for consequential permanent injunction restraining the Defendants, his men and agents and subordinates from trespassing into or otherwise disturbing the Plaintiffs peaceful possession and enjoyment of the Suit properties. In the said Suit, the Respondents/Defendants filed an Application under Order 8, Rule 9, C.P.C. in I.A. No.493 of 2011 for reception of Additional Written Statement cum Counter-claim. The said Application came to be allowed by the Trail Court against the present Civil Revision Petition has been preferred.

The learned Counsel for the Revision Petitioner would submit that the Revision Petitioner/Plaintiff executed a Sale Deed dated 10.6.1987 in favour of the Defendants 2 to 3 for an extent of 0.49 cents. However, the Defendants 1 to 3 have not taken possession of the above mentioned properties. Like wise, on 16.8.1989, the Revision Petitioner/Plaintiff executed a Sale Deed in favour of the Defendants 2 & 3 in respect of 0.42 cents and another Sale Deed in favour of the First Defendant in respect of 0.64 cents and another Sale Deed in favour of the First Defendant in respect of 0.64 cents and the said properties were also not taken possession by the Defendants 1 to 3. So, the Revision Petitioner/Plaintiff claims title by adverse possession, since he is in possession of the aforesaid properties for more than 20 years.

The Fourth Defendant in the Suit filed a detailed Written Statement, which was adopted by the Defendants 1, 2, 3 & 5, wherein it was stated that from the date of execution of the Sale Deed they were in possession and enjoyment of the Suit properties. It was further stated that during July 2007, the Highways Department announced acquisition of some portions of the Suit properties belonging to the Defendants 4 & 5 and also some portions of the land belonging to the Plaintiff for the purpose of Highways expansion works. At that point of time the Plaintiff suddenly trespassed into the Suit property and started constructing compound wall within the Suit property owned by the Defendants. So, the Defendants filed an Application in I.A. No.493 of 2011 seeking to file Additional Written Statement cum Counter-claim, wherein the Defendants had prayed for the following reliefs:

(a) Mandatory injunction directing the Plaintiff to demolish and remove the illegally constructed compound wall on the east side of the Item 1 of the Suit property ;

(b) Direct the Plaintiff to deliver possession of the Suit properties to the Defendants 4 & 5;

(c) Permanent injunction to restrain the Plaintiff from in any manner causing interference to the peaceful possession and enjoyment of the Suit property by the Defendants 4 & 5 and refrain the Plaintiff from causing any obstructions in any manner to the access to the Suit properties.

The Trail Court after considering the argument made by both sides, allowed the Application.

The learned Counsel appearing for the Revision Petitioner/Plaintiff would submit that the Counter-claim made under Order 8, Rule 9, C.P.C. is not maintainable, since before delivering the defence, the Defendants ought to have filed the Counter-claim under Order 8, Rule 6-A of C.P.C. The learned Counsel further submitted that allowing the Counter-claim by way of Additional Written Statement is a discretionary relief which defends upon the facts of each case. To substantiate his arguments, the learned Counsel for the Petitioner relied upon the following decisions:

(i) Bollepanda P. Poonacha and another v. K.M. Madappa, 2008 (2) CTC 523 (SC) : 2008 (13) SCC 179;

(ii) Mahindra Kumar and another v. State of Madhya Pradesh and others, 1987 (3) SCC 265;

(iii) Gurubachan Singh v. Bhag Singh and others, 1996 (1) SCC 770;

(iv) Ramesh Chant Ardawatiya v. Anil Panjvani, 2003 (7) SCC 350;

(v) T.M. Durairaj v. S. Arul Prakash, 2014 (1) CTC 79, and

(vi) Naganath Jagannath Lomate and another v. Narsingh Sambha More and others, AIR 2009 Bom. 133.

Resisting the same, the learned Senior Counsel appearing for Respondents 1, 4 & 5 would submit that to avoid multiplicity of proceedings, the Respondents or entitled to file counterclaim even after the filing of their defence. To substantiate his argument, the learned Senior Counsel appearing for the Respondents relied upon the decisions reported in A. Mohammed Sulaiman and another v. A. Ameena Beevi (deceased) and others, 2013 (2) CTC 735.

Considered the rival submissions made by both the sides and perused the entire materials available on record.

It is an admitted fact that only after the filing of the Written Statement the Application for filing of Additional Written Statement cum Counter-claim was filed. The said Application was filed under Order 8, Rule 9, C.P.C. Before considering the facts of the case, it is appropriate to consider the decisions relied upon by both sides.

The following are the decisions relied on by the learned Counsel appearing for the Petitioner.

10.1. In the decisions reported in Bollepanda P. Poonacha and another v. K.M. Madappa, 2008 (2) CTC 523 (SC) : 2008 (13) SCC 179, "it was held that the limitation was that the Counter-claim or set-off must be pleaded by way of defence in the Written Statement before the Defendant filed his Written Statement or before the time-limit for delivering the Written Statement has expired, whether such Counter-claim is in the nature of a claim for damages or not. At this juncture, it is appropriate to incorporate Order 8, Rule 6-A, C.P.C. under Order 8, Rule 9, C.P.C.

"6-A. Counter-claim by Defendant.- (1) The Defendant in a Suit may, in addition to his right of pleading a set-off under Rule 6, setup, by way of Counter-claim against the claim of the Plaintiff, any right or claim in respect of a cause of action accuring 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.

Subsequent pleadings - No pleading subsequent to the Written Statement of a Defendant other than by the way of defence to 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."

Under Order 8, Rule 6-A, C.P.C, it is specifically mentioned " before the time limited for delivering his defence has expired."

10.2. In the decision reported in Naganath Jagannath Lomate and another v. Narsingh Sambha More and others, AIR 2009 Bom. 133, the Phase "delivering defence" is defined. It is appropriate to incorporate Paragraph 10 of the said decision:

"10. The Defendant can raise Counter-claim against the Plaintiff in respect of cause of action accruing to the Defendant either before or after filing of the Suit, but before the Defendant has delivered his defence. The phrase "delivering defence" is with reference to presentation of return statement. It is to that technically Defendant No.6 has not presented his return statement, however, he has adopted return statement presented by Defendant No.1 and Defendant Nos.l & 7, respectively. In these circumstances, it would not be plausible to content that there is no defense raised by Defendant No.6. Technically speaking, there is no return statement presented by Defendant No.6, however, he is entitled to adopt return statement presented by other Defendants. It would, therefore, be too technical to contend that there is no defence raised by Defendant No.6 and as such he cannot raise Counter-claim.

The Defendant is required to raise Counter-claim along with his Written Statement in relation to the cause of action arisen before presentation of Written Statement. Defendant is not precluded from raising a Counter-claim in respect of cause of action accruing to him after presentation of Written Statement by way of tendering an Application seeking amendment to the pleadings. However, in the instant matter, cause of action for presentation of Counter-claim is stated to have accrued on 2.5.2002, Whereas Suits were presented by Plaintiffs on 30.4.2002 and 19.11.2002, respectively. Thus, it is clear that, date of accrual of cause of action for presentation of Counter-claim is stated to be 2.5.2002, which is certainly prior to presentation of defence i.e., filing of Written Statement by Defendant No.6. Defendant No.6 has filed a purses, in that regard, after September 2002. The accrual of cause of action for filing Counter-claim has arisen prior to presentation of Written Statement by Defendant No.6. As such, it was incumbent upon him to rise his Counter-claim in the Written Statement presented by him earlier. Reliance is placed on the Judgment in the matter of Sheikh Ibrahim and another v. Shahida Bi and others, 2002 (3) All. MR 809. In Para 13 of the said Judgment, it has been observed by this Court:

"The provision further contemplates that the Defendant can make a Counter-claim but then he has to prefer the Counter-claim at the time of filing of the Written Statement if the cause action for claiming the Counter-claim arises before the filing of the Written Statement. That further means that the Defendant can make a Counter-claim if in certain cases the cause of action has arisen after filing of Written Statement, even after filing of the Written Statement. The learned Civil Judge has totally misinterpreted this provision and has held that as the Defendant had not led the evidence in this matter, he could amend the Written Statement by claiming Counter-claim. The Counter-claim has to be made only with respect to the cause of action as explained above"

Admittedly, in the present case on hand, the counter has been filed on 10.1.2008 and the present Application has been filed on 29.7.2011, nearly after a gap of 3Y 2 years. Now, this Court has to decide whether the Defendants are entitled to file Counter-claim, after filing the Written Statement ? It is appropriate to consider the decision reported in Bollepanda P. Poonacha and another v. K.M. Madapa, 2008 (13) SCC 179. The learned Counsel relied upon Paragraphs 10, 11, 12, 13, 14 & 19 and submits that if the issue is statutorily barred, the jurisdiction of the Court cannot be exercised. It is appropriate to incorporate the above mentioned Paragraphs of the said decision:

"10. Order 6, Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the Proviso appended thereto (which is not applicable in the instant case), such Applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of Written Statement deserves more liberally consideration than an Application for amendment of Plaint. Order 8, Rule 9, again, subject to the statutory interdict enables a Defendant to file additional pleadings.

The provision of order 8, Rule 6-A, must be considered having regard to the aforementioned provisions. A right to file Counter-claim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accure either before or after the filing of Suit but before the Defendant has raised his defence. Respondent in his Application for amendment of Written Statement categorically raised the plea that the Appellants had trespassed on the land, in question, in the summer of 1998. Cause of action for filing the Counter-claim inter alia was said to have arisen at that time. It was so explicitly stated in the said Application. The said Application, in our opinion, was, thus clearly not maintainable. The decision Sri Ryaz Ahmed (supra), is based on the decision of this Court in Baldev Singh and others v. Manohar Singh and another.

Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed (supra). In that case, the proposed amendment by the Defendant was allowed to be filed as he wanted to make a Counter-claim by way of Decree for grant of mandatory injunction to remove the built up area on the disputed portion of land. It was therein held that instead of driving the Defendant to file a separate Suit therefore, it was more appropriate to allow the Counter-claim keeping in mind the prayer of a negative declaration in the Plaint. However, in the instant case, the Counter-claim was purported to have been filed for passing of a Decree for recovery of possession of the disputed land after the Suit had been filed.

Baldev Singh (supra) is not an authority for the proposition that the Court while allowing an Application for amendment will permit the Defendant to raise a Counter-claim although the same would run counter to the statutory interdicts contained in Order 8, Rule 6-A. Some of the decisions of this Court in no uncertain term held it to be impermissible. See Mahendra Kumar v. State of Madhya Pradesh, 1987 (3) SCC 265, Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Day (dead) by L.Rs.

In Gurbachan Singh v. Bhag Singh and ors., 1996 (1) SCC 770, this Court clearly held:

"3. ....... The limitation was that the Counter-claim or set-off must be pleaded by way of defence in the Written Statement before the Defendant filed his Written Statement or before the time limit for delivering the Written Statement has expired, whether such counterclaim is in the nature of a claim for damage or not... "

Parliament, however, has placed an embargo while giving effect to the decision of this Court in inserting Order 8, Rule 6-A of the Code of Civil Procedure. While there exists a statutory bar, the Court''s jurisdiction cannot be exercised."

10.3. In the decision reported in Mahendra Kumar and another v. State of Madhya Pradesh and others, 1987 (3) SCC 265, it was held that the counterclaim has to be filed within three years from the date of accrual of the Suit. It is appropriate to incorporate Paragraph 15 of the said decision:

"15. The next point that remains to be considered is whether Rule 6-A(1) of Order 8 of the Code of Civil Procedure bars the filing of a Counter-claim after the filing of a Written Statement. This point need not detain us long, for Rule 6-A(1), does not, on the face of it, bar the filing of a counterclaim by the Defendant after he had filed the Written Statement. What is laid on under Rule 6-A(1), is that a Counter-claim can be filed, provided the cause of action had accrued to the Defendant before the Defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A(1), in holding that as the Appellants had filed the Counter-claim after the filing, of the Written Statement, the Counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A(1) of the Code of Civil Procedure. As the cause of action for the Counter-claim had arisen before the filing of this Written Statement, the Counter-claim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any Suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a Counter-claim, which is treated as a Suit under Section 3(2)(b) of the Limitation Act has been filed by the Appellants within three years from the date of accrual to them of the fight to sue. The learned District Judge and the High Court were wrong in dismissing the Counter-claim."

In the present case on hand, in the additional Written Statement, it was stated that the Petitioner/Plaintiff trespassed into their property on 2.7.2008 and started constructing a compound wall. Whereas in the Written Statement filed on 10.1.2008, in Paragraph 28, it was stated that during July 2007, the Highways Department announced acquisition of some portions of the Suit property belonging to the Defendants 4 & 5 and also some portions of the land belonging to the Plaintiff for the purpose of High way expansion works. At that point of time, the Plaintiff illegally trespassed into the Suit property and started constructing a new compound wall within the Suit property owned by the Defendants. But, the present Application in I.A. No.493 of 2011 was filed only on 29.7.2011 which is more than 3Y2 years from the date of filing of Written Statement viz., 10.1.2008. So, it is barred by time.

10.4. Yet another decision relied on by the learned Counsel appearing for the Petitioner is reported in Gurubachan Singh v. Bhag Singh and others, 1996 (1) SCC 770, wherein it was held that in the Suit for injunction, Counter-claim for possession can be entertained. It is appropriate to incorporate Paragraph 2 of the said decision:

"2. The contention raised in the Courts below was that in a Suit for perpetual injunction, the Respondents could not lay any Counter-claim for possession. Order 8, Rule 6-A(1) of the C.P.0 ., 1908 as amended in 1976 reads thus:

"A Defendant in a Suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of Counter-claim against the claim of the Plaintiffs, 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."

10.5. In the decision reported in Ramesh chant Ardawatiya v. Anil Panjvani, 2003 (7) SCC 350, it was held that the Courts discretion to permit the filing of a belated Written Statement or a Written Statement containing a plea of set-off or Counter-claim should be exercised in a reasonable manner keeping in view all the relevant circumstances of the case including the Defendants conduct and the likelihood of any prejudice to the Plaintiff or loss of a vested right accrued to him by lapse of time. It is appropriate to incorporate Paragraphs 26, 28 & 40 of the said decision:

"26. A perusal of the above said provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a Defendant to file a Counter-claim. The relevant words of Rule 6-A, are:

"A Defendant in a Suit may, in addition to his right of pleading a set-off under Rule 6,... before the Defendant has delivered his defence or before the time limited for delivering his defence or has expired... "

These words go to show that a pleading by way of Counter-claim runs with the right of filing a Written Statement and that such right to set up a Counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the Written Statement. Once'' the right of the Defendant to file Written Statement has been lost or the time limited for delivery of the defence has expired then neither can the Written Statement be filed as of right nor a Counter-claim can be allowed to be raised, for the Counter-claim under Rule 6-A, must find its place in the Written Statement. The Court has a discretion to permit a Written Statement containing a plea in the nature of set-off or Counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the Defendant, and the fact whether a belated leave of the Court would cause prejudice to the Plaintiff or take away a vested right which has accrued to the Plaintiff by lapse of time.

Looking to the scheme of Order 8, as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a Counter- claim in a Civil Suit. Firstly, the Written Statement filed under Rule 1, may itself contain a Counter-claim which in the light of Rule 1, read with Rule 6-A, would be a Counter-claim against the claim of the Plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a Counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a Written Statement already filed. Thirdly, a Counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the Counter-claim though referable to Rule 6-A, cannot be brought on records as of right but shall be governed by the discretion vesting in the Court, either under Order 6, Rule 17, C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8, Rule 9 of C.P.C. if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a Counter-claim is to avoid multiplicity of judicial proceedings and save upon the Courts time as also to exclude the inconvenience to the parties by enabling claims and Counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a Counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing delay in the progress of the Suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated Counter-claim. The framers of the law never indented the pleading by way of Counter-claim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a Counter-claim not contained in the original Written Statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a Counter-claim is not entertain able when there is no Written Statement on record. There being no Written Statement filed in the Suit, the Counter-claim was obviously not set up in the Written Statement within the meaning of Rule 6-A. There is no question of such Counter-claim being introduced by way of amendment; for there is no Written Statement available to include a Counter-claim therein. Equally there will be no question of a Counter-claim being raised by way of "subsequent pleading: as there is no "previous pleading" on record. In the present case, the Defendant having failed to file any Written Statement and also having forfeited his right of filing the same the Trial Court was fully justified in not entertaining the Counter-claim filed by the Defendants/Appellant. A refusal on the part of the Court to entertain a belated Counter-claim may not prejudice the Defendant because in spite of the Counter-claim having been refused to be entertained he is always at liberty to file his own Suit based on the cause of action for Counter-claim.

The Appeal filed by the Defendant is partly allowed. The Decree of declaration that the Plaintiff-Respondent is owner of the Suit property is set aside. Instead it is declared that from 1.12.1985 to 8.2.1987 the Plaintiff was in peaceful possession of the Suit plot pursuant to Agreement dated 1.12.1985 entered into by Shri Niwas Vaidhaya, the allottee of the plot from the society, in favour of the Plaintiff. The Plaintiff also entitled to mandatory and permanent preventive injunctions. It is ordered and decreed that the construction, if any, raised by the Defendant on the plot and the hutment raised by his labourers shall be removed by him and the possession over the plot shall be restored to the Plaintiff. The Defendant is permanently restrained from interfering with the possession of the Plaintiff over the Suit plot except by due process of law. The Suit filed by the Plaintiff shall be deemed to have been decreed by the Trial Court in the above said terms. The Trial Court shall draw up a Decree consistently with this Judgment. The costs shall be borne by the Defendant-Appellant up to the High Court. The costs in this Court shall be borne as incurred."

10.6. In the decision reported in T.M. Durairaj v. S. Arulprakash, 2014 (1) CTC 79, it was held that the Counter-claim cannot be filed belatedly and law of limitation squarely applies to the Counter-claim. It is appropriate to incorporate Paragraph 22 of the said decision:

"22. On a careful consideration of respective contentions and although the object of Order 8, Rule 6-A, has regards the Tounter-claim'' is to avoid plurality of proceedings, yet, this Court is of the considered view that in main Suit O.S. No.283 of 2005 on the file of the II Additional District Munsif, Coimbatore, the issues were framed and also that PW1 was examined in full. Further, when the trial has commenced, the Revision Petitioner/1st Defendant, in the considered opinion of this Court, is not entitled to project the Counter-claim by way of additional Written Statement. That apart, the Petitioner/1st Defendant cannot, either as a matter of routine or as a course, claim any right to file the Additional Written Statement in the form of Counter-claim. In the instance case, the additional Written Statement in the form of Counter-claim was dated 25.1.2008, although I.A. No.351 of 2010 was dated 5.12.2007. At this stage, the learned Counsel for the Petitioner/1st Defendant brings it to the notice of this Court that at the time of filing of I.A. No.351 of 2010 on 5.12.2007 the additional Written Statement by way of Counter-claim was not filed and only at a later point of time dated 25.1.2008 the same was filed with necessary Court-fee being paid. However, the Trial Court has rejected the I.A. No.351 of 2010 on 8.10.2010 by assigning reasons."

Per contra, to support the case of the Respondents, the learned Senior Counsel appearing for the Respondents 1, 4 & 5 relied upon the decision reported in A. Mohamed Sulaiman and another v. A. Ameena Beevi (deceased) and others, 2013 (2) CTC 735, In the said case, the Suit is for partition where the First Defendant supported the claim of Plaintiff and claimed share in the Suit property, the second and Third Defendant alleged that the First Defendant had released her right on account of disputed Release Deed and so, the First Defendant filed an Application to file Counter-claim to set aside the Release Deed. The said Application was allowed and the same was also upheld by this Court. But the above citation is not applicable because in the said citation two issues were raised. One is whether Counter-claim can be raised by way of Additional Written Statement ? And the other is whether the Defendant can raise Counter-claim against the Co-Defendant ? It is well settled principle that in a Suit for partition, both the Plaintiff and the Defendants are the same footing and the cause of Action is a continuous one, till the passing of the final decree. In such circumstances, the above citation will not be applicable to the present case on hand.

In the present case on hand, the Suit is for declaration and injunction. In the Written Statement, it was stated that the Defendants are in the possession of the property. Further, in Paragraph 28, it was specifically stated as follows:

"28. During July 2007, the Highways Departments announced acquisition of some portions of the Suit property belonging to Defendants 4 & 5 and also some portions of the land belonging to the Plaintiff for the purpose of Highways expansion works. The Highways Department has issued notice to the Plaintiff and the Defendants based on the Revenue records asking them to produce relevant records get Compensation for such acquisition. Now the Highways Department has started demolishing the compound wall of the Plaintiff. But the part of the compound wall which belongs to the Defendants and situated within the Suit property is still not demolished. While so, all of a sudden the Plaintiff brought a large number of coolies and masons and illegally trespassed into the Suit property and started constructing a new compound wall within the Suit property owned by the representative of the Defendants. On coming to know about this illegal act, the representative of the Defendants rushed to the Suit property and raised objections. Therefore the Plaintiff''s men left the Suit property by leaving the construction of new compound wall in an incomplete manner."

So, the cause of action arose in July 2007. The present Application I.A. No.493 of 2011 was filed on 28.7.2011, almost after 3� years. In the Additional Written Statement, it was stated only on 2.7.2008, all of a sudden the Plaintiff illegally trespassed into the Suit properties and started constructing a compound wall, which would clearly prove that in order to avoid the limitation, and he raised such plea. Even then, the Application to receive the Additional Written Statement cum Counter-claim was filed after three years from 2.7.2008 and hence, it is barred by time.

So, prima facie, the Counter-claim is barred by time. The said factum has not been considered by the Trial Court. So, I am of the considered view that the impugned Order passed by this Trial Court is unsustainable.

In fine, the fair and decretal Order dated 19.9.2011 made in I.A. No.493 of 2011 in O.S. No. 552 of 200 on the file of the Second Additional District Munsif Court, Erode is liable to be set aside and hereby set aside and the Civil Revision Petition is stands allowed. Consequently, the connected Miscellaneous Petition is closed. No Costs.