Palanisamy vs Ramasamy and Others

S. Ashok Kumar, J.—As against the allowing the I.A.No: 1537 of 2005 which is an application filed by the defendants 1 to 3 for filing additional written statement claiming counter claim, the plaintiff has filed the present revision.

The suit is one for the relief of Declaration and for Permanent Injunction. The defendants also filed their written statement. According to the defendants 1 to 3 they are entitled to claim easementary right of cart track on the southern side in S. No. 89/2K and S. No. 89/2L which has been in existence for more than 100 years and the cart track was set apart as common pathway by the vendors of the plaintiff and the defendants. The said pathway is used to reach their property. The plaintiff and the 5th defendant obliterated the said cart track on 4.7.2005 by ploughing the same and annexed the same along with his land and by cutting the cart track to a depth of 3 feet. Hence, it has become necessary for them to file additional written statement claiming counter claim for declaration and permeant injunction and mandatory injunction over the said cart track.

Though the plaintiff resisted the said application denying the obliteration of the said cart track on 4.7.2005, having already filed their written statement they are not entitled to file the present application under Order 8 Rule 6(A) CPC and they can only file a fresh suit based on the cause of action if any happened as on 4.7.2005, the learned District Munsif, Tiruchengode allowed the said Interlocutory Application for filing additional written statement making counter claim. Aggrieved of the same, the plaintiff has filed the present revision.

Learned Counsel for the revision petitioner/plaintiff contended that the trial court is not correct in accepting the counter claim filed by the defendants 1 to 3 in the form of additional statement in respect of the cause of action accrued subsequent to the filing of the written statement, especially when there is a bar under Order 8 Rule 6A (1) as laid down by the Supreme court in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, , Gurbachan Singh Vs. Bhag Singh and others, and AIR 1992 MP 29. Thus, if there had been any such obliteration on 4.7.2005 it would have been specifically stated by the defendants 1 to 3 in their counter filed in I.A. No. 1202 of 2005 on 18.7.2005 failing to do so would only go to show that the alleged cause of action as on 4.7.2005 is a fictitious one which will not confer any right on them subsequent to the filing of the written statement.

On the other hand learned Counsel appearing for the respondents contended that the alleged cause of action on 4.7.2005 is after the suit and therefore Order 8 Rule 6A does not preclude filing of a counter claim after filing of the written statement and there is no necessity to file a separate suit when the plea of right of way has already been raised by the defendants 1 to 3 in their written statement.

A perusal of the typed set of papers would show that the defendants 1 to 3 claimed Easementary Right of pathway over Survey Nos. 89/2K1 and 2K2, 89/2L1 and 2L2 by way of prescription. It is their allegation that the 5th defendant obliterated the existing cart track by put up revetment and also digging a portion of the said cart track on 4.7.2005. The judgement reported in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, relied on by the learned Counsel for the petitioner is to the effect that a counter claim can be filed after filing of the written statement by the defendant if cause of action has arisen for filing a counter claim. Since the cause of action in the present case is on 4.7.2005, the defendants are entitled to make counter claim.

In 1998 (2)CLJ 8 (Shanti Rani Das Dewanjee v. Dinesh Chandra Day), the Apex Court held that the mere fact that written statement was filed in a case cannot take away the right to file counter claim if cause of action for filing counter claim continues. The counter claim is filed within the period of continuance of cause of action and it is not barred by limitation. Such continuance of cause of action is 4.7.2005 in the present case and therefore even as per Order 8 Rule 6A(1) CPC, the cause of action had accrued to the defendant before the time limited for delivering his defence has expire as has been held in Gurbachan Singh Vs. Bhag Singh and others, . The Supreme Court in the decision reported in Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs., also held that the right to file counter claim under Order 8 Rule 6A CPC is referable to the date of accrual of cause of action. It is also not in dispute that preferring counter claim has been statutory granted in order to avoid multiplicity of suits. Under these circumstances, I do not find any defect any illegality or irregularity in the order passed by the learned District Munsif.

In the result, the CRP is dismissed. Consequently, connected CMP is also dismissed. No costs.