9911796707
TMI Blog2006 (10) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit property by the Plaintiff and that in other respects, dismissed the suit and decreed the counter claim of the Defendants with costs for a sum of ₹ 74,906/- with future interest thereon at 12% p.a. from the date of counter claim i.e. from 28.10.1994 till the date of the decree and at 6% p.a. thereafter till payment. As against the same, the Plaintiff filed an appeal in AS.No.238/2005 before the Additional District and Sessions Judge (FTC III) Chennai, which was dismissed, confirming the judgement and decree of the trial court. Aggrieved by the same, this second appeal has been filed by the Plaintiff. 3.The case of the Plaintiff as set out in the plaint is as follows:- The Plaintiff was a tenant under a rental agreement dated 1.3.1972 in respect of the I Floor with open terrace as mentioned in the plaint schedule belonged to the 1st Defendant on a monthly rent of ₹ 300/-. The Plaintiff effected several improvements, alterations and additions in the I Floor at the cost of ₹ 12,800/-. As per the agreement dated 1.3.1972, Ex.A1, the Plaintiff was allowed to put up constructions and sublet a portion and the 1st Defendant has to repay the cost of the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Dhinakar as PW.2. The Defendants marked Ex.B1, copy of judgement in RCOP.No.1947/86 dated 17.3.1992, Ex.B2, copy of decree in RCOP.No.1947/86 dated 17.3.1992, Ex.B3, copy of notice with acknowledgement dated 5.4.1973, Ex.B4, copy of notice dated 26.9.1983, Ex.B5, copy of reply notice dated 6.10.1983, Ex.B6, copy of appeals in RCA.Nos.1005/92 and 1006/1992 dated 22.2.1996, Ex.B7, copy of decree in RCA.Nos.1005/92 and 1006/1992 dated 22.2.1996, Ex.B8, copy of reply notice with acknowledgement dated 12.4.1973, Ex.B9, copy of lawyer's notice dated 26.9.1983, Ex.B10, copy of reply notice dated 6.10.1983, Ex.B11, copy of the order in RCOP.No.1947/86 dated 17.3.1992, Ex.B12, copy of letter with acknowledgement dated 10.8.1992, Ex.B13, copy of letter with acknowledgement dated 7.10.1992, Ex.B14, copy of notice with acknowledgement dated 24.8.1994, Ex.B15, copy of reply notice dated 25.9.1994, Ex.B16, copy of rejoinder dated 22.10.1994 and Ex.B17, copy of Written Statement in OS.No.4085/1981 dated 27.2.1982 and examined the 3rd Defendant as DW.1 and the 5th Defendant as DW.2. 6.The trial court, after considering the oral and documentary evidence and the orders of the rent control au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on the contrary, the Defendants proved their counter claim by adducing both oral and documentary evidence and ultimately, dismissed the appeal, concurring with the findings of the trial court and confirming the judgement and decree of the trial court. 8.The learned counsel for the appellant has submitted that the lower appellate court misconstrued the recitals of Exs.A3 to A6 and came to a wrong conclusion that the 1st Defendant has not received further advance amounts of ₹ 5,000/- on 15.11.1972, ₹ 15,000/- on 13.12.1972, ₹ 70,000/- on 1.1.1973 and ₹ 59,100/- on 1.1.1973, in all totalling ₹ 1,49,100/- and that the courts below committed an error in law in venturing on comparison of disputed signatures, even after an order to refer the documents for expert opinion was passed by the court by consent and that the lower appellate court erred in law in applying the doctrine of estoppel against the Plaintiff and refused to grant the relief under Exs.A3 to A6; that in concluding that the finding of the rent controller is binding on a competent Civil Court, and that the decree for fixation of fair rent without the owner of the property being a party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to set up counter claim are not only limited for the claim put forth by the Plaintiff in a suit itself, and even the cause of action need not be the same; there is nothing in order 8, rule 6 or 6a of cpc, restricting the nature of relief which the Defendants might seek in the counter claim. The Defendant can set up by way of counter claim any right or claim against the Plaintiff which arises before the Defendant has delivered his defence or before the time limited for delivering his defence has expired. The court can treat a counter claim as a plaint in a cross suit and hear the two suits together, provided necessary court fee has been paid. The essence of a counter claim is that Defendant should have an independent cause of action in the nature of a cross action and not merely a defence to the Plaintiff's claim. 13.order viii rule 6b of cpc reads as under:- Counter claim to be stated: Where any Defendant seeks to rely upon any ground as supporting a right of counter claim, he shall, in his Written Statement, state specifically that he does so by way of counter claim. It is admitted in this case that the respondents herein complied with the said Rule 6B. 14.Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 issued by the appellant herein, he has not mentioned about the said further three payments covered under Ex.A3 to A5, besides there is no whisper about the alleged advance of ₹ 29,100/-. Considering the said documents, the courts below rejected the claim of the appellant in respect of the further payments under Ex.A3 to A5 and advance. It is also necessary to mention that in Ex.B3, the appellant called upon the 1st Defendant not to interfere with his possession on the ground that he incurred expenses in remodelling the premises in his occupation and nothing more found mentioned in Ex.B3. While so, it is also not possible to pay any further amount to the 1st Defendant as claimed under Ex.A6. 19.With regard to the another argument advanced by the learned counsel for the appellant that the court, though an order is passed by consent to send the disputed signatures for comparison with Ex.A1 to a handwriting expert, which were compared by the trial court and came to the conclusion that Ex.A3 to A6 are forged documents. It is also pointed out by the lower appellate court that when the execution of Exs.A3 to A6 was denied by the 1st Defendant, the onus lies on the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are cause of action estoppel and issue estoppel . These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. section 11 of the code of civil procedure contains provisions of res judicata, but these are not exhaustive of the general doctrine of res judicata. Lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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