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TMI Blog2011 (1) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to make a detailed reference to the chequered history of the litigation between the parties. We may, however, briefly narrate the facts. 4. The Appellants herein were the Plaintiffs before the trial court and the Respondents were the Defendants. 5. The Appellant is an Association registered under the Societies Registration Act. The Appellant contends that it purchased 2 acres 30 guntas of land in Sy. No. 110/2 of Laggere Village (the schedule property) under an agreement of sale dated 26th November, 1988 from its vendors Sri B.C. Vijayakumar and Smt. Mayamma. In part performance of this agreement of sale, the Appellant was put in possession of the schedule property. The Appellant and is members are in peaceful possession and enjoyment of the same. In the month of December, 1998, the Respondents tried to interfere with the Appellant's possession and enjoyment of the schedule property and therefore, they filed O.S. No. 163 of 1999 for grant of decree of permanent injunction. 6. The Respondents 1 and 2 entered appearance before the trial court, filed written statement inter alia contended that they are the owners of a portion of land in Sy. No110/1 of Laggere village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants filed written statement. On the basis of the amended pleadings, the trial court framed the following two additional issues: 1. Whether the Respondents prove that the Appellant Association have erected temporary sheds on the schedule property subsequent to passing of interim order in the above said suit. 2. Whether the Respondents are entitled to the relief of Mandatory Injunction by way of counter claim. 10. After remand and framing of additional issues, both the parties adduced oral evidence and produced additional documents. Pursuant to the directions issued by the High Court in RFA No. 497 of 2002, the trial court appointed Assistant Director of Land Records (hereinafter referred to as 'ADLR') as Court Commissioner to survey the schedule property in the presence of both the parties. Accordingly, the Court Commissioner conducted survey of the schedule property and submitted his report to the trial court. The Court Commissioner was examined as CW-1 and through him three documents came to be marked as Ex.C1 to Ex.C3. 11. Again the trial court after hearing both the parties and upon appreciation of the pleadings, oral as well as documentary evidence, on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire issues, the High Court concluded that the plaint schedule property of the Appellants to the extent of 2 acres and 30 guntas was in survey No. 110/2 of Laggere Village. The High Court also held that the survey dated 24th March, 1981 on the basis of which the Appellants had been put in possession on a portion of survey No. 110/1 and portion of survey No. 110/2 had been set aside by the Joint Director of Land Records (hereinafter referred to as 'JDLR) on 22nd June, 1998 in Appeal No. 4/98. The High Court noted that this order of JDLR was prior to the filing of the suit before the trial court on 6th January, 1999. The fact that the Appellants were in possession of portions of Sy. No. 110/1 and Sy. No. 110/2 ought to have been pleaded in the original plaint. It is further observed that, in any event, the Appellants ought to have amended the plaint contending that they are in possession of a portion of Sy. No. 110/1 and a portion in Sy. No. 110/2. Instead of making the necessary averments in the original plaint or amending the pleadings, the prayer of the Appellants remained that they are in possession of 2 acres and 30 guntas in Survey No. 110/2. The High Court further noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creeing the suit of Appellant for permanent injunction is modified specifying that the plaint schedule property as ABFH shown in green colour in survey sketch. 3. The Respondents or anybody claiming under them are hereby permanently restrained from interfering from the peaceful possession and enjoyment of the plaint schedule property as stated above. 4. The impugned judgment and decree of the trial court dismissing the counter claim of the Respondents is hereby set aside. 5. The application filled by the Respondents for amendment of the counter claim is hereby allowed. 6. The learned Counsel for the Respondents to amend the counter claim of the written statement before the trial court within two weeks from the date of receipt of the order. The trial court to provide an opportunity to the Appellants to file additional written statement for this counter claim and to decide the matter in accordance to both the parties. 7. In view of the fact that already abundant evidence available on record and the matter is pending for a long time, a direction is issued to the trial court to expedite the matter and to dispose the counter claim of the of the Respondents as expeditiousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be liberally permitted by the court. The only rider is the court being satisfied that such amendment is necessary for the determination of the real question in controversy. In support of his submissions, the learned Counsel has made particular reference to the judgment of this Court in Revajeetu Builders Developers v. Narayana Swamy Sons 2009 (10) SCC 84 and Dhanpal Balu Lhawale v. Adagouda Nemagouda Patil 2009 (7) SCC 457. 20. Learned Counsel by making a detailed reference to the factual situation has submitted that the boundaries of the land were fixed in the presence of the parties on 3rd March, 2000 by the ADLR. The order of the ADLR was upheld by the Revenue Authorities. The Karnataka Appellate Tribunal dismissed Appeal No. 398 of 2001 filed by the Appellants on 13th December, 2001. The order of the Tribunal was challenged by the Appellants in the High Court of Karnataka in Writ Petition Nos. 2661-64 of 2002. The High Court dismissed the aforesaid writ petition by order dated 4th March, 2002. In view of the above, the matter regarding hudbust and fixing of boundaries and rights of interest over the respective portions of the land between the vendors of the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the counter claim of the Respondents. 24. It was noticed that the Respondents wanted a direction in the nature of the Mandatory Injunction, to be given to the Appellant to demolish the illegal construction, which came subsequent to the passing of the status quo order. We may notice here that the status quo order referred to by the trial court had been passed on 7th January, 1999. The trial court, however, observed that the order of status quo was granted in respect to disputed property. The disputed property is what is described in the plaint schedule and not in the schedule to the written statement. Therefore, it was observed that the Respondents would have the cause of action available to seek possession based on title and not on the basis of mandatory injunction on account of violation of status quo order. In these circumstances, the trial court observed that the appropriate remedy available to the Respondents is to sue for possession. 25. In our opinion, the High Court, while allowing the claims of the Respondent to include the prayer for possession in the counter claim, failed to appreciate that the order passed by the trial court did not cause any prejudice to the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim on the basis of which the Appellant laid the suit, on his own cause of action. In Sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the Plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the Plaintiff. The words any right or claim in respect of a cause of action accruing with the Defendant would show that the cause of action from which the counter- claim arises need not necessarily arise from or have any nexus with the cause of action of the Plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The aforesaid observations, in our opinion, have no relevance to the controversy in the present case, as the claim of the Respondent has been rejected by the trial court on the ground that the cause of action arose a long time ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Dhanpal Balu (supra), this Court permitted the amendment in the facts and circumstances of that case. Thus the judgment would not advance the case of the Appellant in any manner. 33. We may notice here the observations made by this Court in the case of Ramesh Chand (supra) which may be of some relevance. Upon considering the ratio of earlier cases in the case of Sangaram Singh v. Election Tribunal, Kotah AIR 1955 SC 425, Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 and Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala AIR 1964 SC 11, it was held that a right to make a counter claim is statutory and a counter claim is not admissible in a case which is admittedly not within the statutory provisions. It is further observed that: 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 Appellant preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may notice here the observations of this Court in the case of Rohit Singh (supra) which are as follows: A counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so- called counterclaim of Respondents 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. These observations would show that the dismissal of the counter claim by the trial court was neither illegal nor without jurisdiction. In fact the direction issued by the High Court would clearly run counter to the aforesaid observations. In the aforesaid case, this Court was considering a situation where the evidence had been closed, arguments on behalf of the Respondents had been concluded, the suit was adjourned for arguments of the Appellants, the suit was dismissed for default. Subsequently, it was restored. Thereafter the Respondents filed an application for amending the written statement. The counter claim was filed by the intervener. In these circumstances, it was observed that at this stag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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