IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYNINETH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition Nos.4644 and 5049 of 2010 C.R.P.No.4644 of 2010 Between: Mohd. Hussain Tahar and another .. Petitioners AND Ande Pallaiah and 17 others .. Respondents C.R.P.No.5049 of 2010 Between: Mohd. Hussain Tahar and another .. Petitioners AND Ande Pallaiah and 17 others .. Respondents COMMON ORDER: Both the Civil Revision Petitions arise out of a common order and are hence being heard and decided together. The parties are referred to herein as they are arrayed before the trial Court. The plaintiffs filed O.S.No.91 of 2007on the file of I Additional Senior Civil Judge’s Court, (Fast Track Court) Mahabubnagar originally against defendants 1 to 10 with defendants 11 to 15 being impleaded as legal representatives of the deceased 1st defendant, claiming cancellation of decree in O.S.No.58 of 2004 on the file of Junior Civil Judge’s Court, Shadnagar, dated 30-08-2005 obtained by defendants 2 to 4 in respect of Ac.3.06 guntas of suit land in Sy.No.163 at Solipur village, Farooqnagar Mandal and for declaration of the ownership and possession of the plaintiffs over the same. The plaintiffs claimed that their father and father of defendants 1 to 3 were the joint protected tenants of Ac.6.11 (Ac.6.12) guntas in Sy.No.163 of Solipur with Farhaatunnisa Begum being the land lady. The father of plaintiffs and the father of defendants 1 to 3 purchased half of the land each and the land lady died on 29-06-1991 at her house at Toli Chowki, Hyderabad, leaving defendants 9 and 10 as her heirs. The defendants 1 to 4 filed a suit in O.S.No.58 of 2004 for declaration of title, injunction and correction of entries concerning the entire Ac.6.11guntas in the revenue records showing a wrong address of the land lady and taking substituted service of summons for the same wrong address leading to an ex parte decree on 30-08-2005. The decree against the dead person was a nullity and obtained by fraud and misrepresentation. The defendants 1 to 4 got their names recorded as cultivators for the entire extent of land, but the revenue authorities, in spite of conducting an enquiry, could not take any action in view of the Civil Court’s decree. The defendants 1 to 4 took away the original sale deed from the revenue records and the defendants 1 to 4 alienated the suit land to defendants 5 to 8 who had knowledge of the fraud. As the plaintiffs are the owners of Ac.3.06 guntas, they sought for the suit reliefs. The defendants 9 and 10 in their written statement admitted the fathers of the plaintiffs and defendants 1 to 4 being the joint protected tenants in respect of the entire land, but denied the alleged purchases. They also questioned the right of inamdar to alienate the inam lands to the protected tenants until acquisition of rights under the Inams Abolition Act and the possession of the protected tenants or through them, the plaintiffs and defendants 1 to 4 is only permissive. The sale deed was not filed by defendants 1 to 4 in O.S.No.58 of 2004 and defendants 9 and 10, the only legal heirs of Farhatunnisa Begum are, hence, entitled to recover possession from the plaintiffs and defendants 1 to 8. The ex parte decree in O.S.No.58 of 2004 was against a dead person by showing an incorrect address and the reference to the names of defendants 1 to 4 in the revenue records and creation of sale deeds in favour of defendants 5 to 8 are also fraudulent. The defendants 9 and 10, therefore, stated that they are taking separate steps against defendants 1 to 4 and defendants 5 to 8 and they claimed the plaintiffs to have misused their possession as tenants for creating a false sale deed. They, hence, claimed to be entitled to get possession even from the plaintiffs and any occupancy rights certificates issued in favour of the plaintiffs or defendants 1 to 4 were claimed to be illegal. The suit was claimed to be undervalued and the defendants 9 and 10 reserved their right to file a case for possession of the suit land against the plaintiffs and defendants 1 to 8. Ultimately, they sought for dismissal of the suit with costs and a counter relief against the plaintiffs and defendants 1 to 8 for declaring them as the owners of Ac.6.12 guntas in Sy.No.163 and for costs. Though the written statement thus referred to a counter relief neither the Court nor the defendants 9 and 10 acted further treating any portion of the written statement as a counter claim and it was much later that the defendants 9 and 10 came up with I.A.Nos.257 and 392 of 2010 before the trial Court. In I.A.No.257 of 2010, the defendants 9 and 10 claimed that they were advised to seek an additional relief of cancellation of the entire decree in O.S.No.58 of 2004 to avoid any further litigation and hence, they are seeking the incorporation of such a prayer and amendments in the court fee paragraph. As the suit itself is for cancellation of the decree in respect of half of the land, the nature of the suit is not changed and the defendants 9 and 10 also desired typographical errors in the original written statement to be corrected by amending the words “sale deeds” in para-2 of the written statement as agreement of sale-cum-General Power of Attorney and the words “defendants 2 to 8” in Para-5 as defendants 1 to 8 and the extent of the suit survey number in the prayer portion as Ac.6.11 guntas. In addition to this application under Order VI Rule 17 of the Code of Civil Procedure, the defendants 9 and 10 filed I.A.No.392 of 2010 under Section 151 of the Code of Civil Procedure to receive the court fee on the counter claim contending that as their counsel met with an accident, the requisite court fee on the counter claim could not be paid earlier. The requests of defendants 9 and 10 were resisted by the other contesting defendants in O.S.No.91 of 2007 contending that no notices were given to them about any counter claim in the written statement filed in O.S.No.91 of 2007 on 27-01-2008. No court fee was paid and no issues were framed. The payment of court fee on 28-04-2010 was without notice to them and without any leave of the court. The amendment or request for receiving the court fee are, hence, not maintainable and hence, they desired the petitions to be negatived. In the impugned common order, the trial Court referred to the relevant provisions of the Code of Civil Procedure and observed that subject to the law of limitation and procedural laws, the defendants are entitled to make a counter claim, but in the present case, the written statement was treated only as a written statement by the defendants and the Court and no court fee was paid and nothing was brought to the notice of the court even while framing issues. The trial Court also found that a counter claim preferred was never brought specifically to the notice of the court as required by the provisions and there was no proof of the alleged accident suffered by the learned counsel. The suit was part heard with PW.1 having been examined and no copy of the counter claim was served on the opposite parties. Any amendment cannot be permitted after cross-examination of PW.1 and in the absence of any application for extension of time for payment of court fee, payment of court fee cannot be permitted. The trial Court consequently dismissed both the applications filed during the middle of the trial with costs. The defendants 9 and 10 challenged the said orders in these Civil Revision Petitions contending that correction of typographical errors and inclusion of additional relief in the written statement are permissible at any stage for determining the real questions in controversy between the parties when the amendment could not be earlier sought for in spite of due diligence. When there is no change in the nature of the pleadings, the court ought to have granted leave and it ought to have framed the issues regarding the counter claim even on the original written statement. The counter claim is made in tune with Order 8 Rule 6 A of the Code of Civil Procedure and the impugned orders caused irreparable damage to the rights of the revision petitioners, and therefore, they desired the impugned orders to be reversed. Heard Sri B. Ranganatha Rao, learned counsel for the revision petitioners, Sri Venuganti Ramachandra Rao, learned counsel for respondents 1 and 2, Sri V. Hanumantha Rao, learned counsel for respondents 4 to 6, 11 to 13 and 15 to 18 and Sri K. Venkatesh Gupta, learned counsel for respondents 7 to 10. The point for consideration is whether the impugned orders are susceptible to interference in revision? Order VIII Rule 6 A of the Code of Civil Procedure, 1908 deals with a counter claim and Sub-rule 1 thereof states that 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 plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. While such counter claim shall have the same effect as a cross- suit under sub-Rule 2, it shall be treated as a plaint and governed by the same Rules, according to sub-rule 4. The prerequisites for entertaining any counter claim as evident from the specific and unambiguous language of sub-rule 1 are that the counter claim should be against the claim of the plaintiff and the right or claim should be in respect of a cause of action to the defendant against the plaintiff. Any right or claim or cause of action between the defendants inter se does not appear to be governed by the provisions of the said rule. The legal position was made clear in Rohit Singh and Others v. State of Bihar (Now State of Jharkhand)[1] relied on by Sri V. Hanumantha Rao, learned counsel, wherein it was held that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. The Apex Court made it clear that a counter claim directed solely against the co-defendants cannot be maintained and by filing a counter-claim, the litigation cannot be converted into some sort of an inter-pleader suit. If the present written statement of the defendants 9 and 10 is examined with reference to the said provision and the said principle, it is obvious that the contents of the written statement could not have been considered to involve a counter claim. The defendants 9 and 10 in para-2 of the written statement specifically stated that they are taking separate steps against defendants 1 to 4 and defendants 5 to 8 for bringing into existence the registered sale deeds in respect of the suit land and in respect of fraudulent decree in O.S.No.58 of 2004. The defendants 9 and 10 in para-1 of the written statement also stated that they are taking separate steps for possession of the suit land or alternatively to claim a counter relief in the same suit and when they referred to separate steps in this regard, the written statement could not have been again considered to be referring to any counter claim. The defendants 9 and 10 again stated in para-5 of the written statement that they are entitled to sue for the counter relief against the plaintiffs and defendants 1 to 8, but, on the contrary, claimed in para-6 of the written statement that they preserved their right to file a case for possession of the suit land against the plaintiffs and defendants 1 to 8. Ultimately they prayed for a counter relief to declare them as the owners of the entire land of Ac.6.12 guntas in Sy.No.163 against the plaintiffs and defendants 1 to 8. The contents of the original written statement, thus, lack in clarity and consistency regarding what defendants 9 and 10 desired the court to consider and grant. As noted by the trial Court, the fact that a counter claim is being made was never specifically brought to the notice of the court and the written statement does not appear to comply with the mandate of Order VIII Rule 6-B of the Code of Civil Procedure in this regard. The defendants 9 and 10 have obviously not offered or paid any court fee on the alleged counter claim and the absence of a notice of a counter claim to the court or the other parties made compliance with the provisions of Order VIII Rules 6 A to 6 G not possible. The present request again in these two interlocutory applications is to permit a further request for cancellation of the decree in O.S.No.58 of 2004 and to receive the court fee on the counter claim, the earlier non-payment of which was stated in the memo filed on 28-04-2010 to be due to oversight without any reference to the alleged accident suffered by the learned counsel for the defendants 9 and 10. The incorporation of the prayer to set aside the decree in O.S.No.58 of 2004 obtained by defendants 1 to 4 was entirely and exclusively against defendants 1 to 4 only without any involvement of any right or interest or cause of action concerning the plaintiffs. While the claim of the plaintiffs in the suit for cancellation of the decree in O.S.No.58 of 2004 is what the defendants 9 and 10 also seek without any conflict of interest to that extent, the defendants 9 and 10 denying the claims of the plaintiffs’ ownership and possession of Ac.3.06 guntas in Sy.No.163, raised such a plea in defence, which has to be treated as a defence, but not as a counter claim. Though the relief sought for declaring them as the owners of the entire land may be in conflict with the claims of the plaintiffs in this suit, the non- compliance of the mandatory provisions of Order VIII Rules 6 A to 6 G makes entertainment of such counter claim at a belated stage not possible. Though for different reasons, the rejection of the claims of the defendants in these two interlocutory applications cannot, therefore, be interfered with in exercise of the restricted revisional jurisdiction of this Court. However, it is to be made clear that the observations of the trial Court in the impugned order or the observations of this Court in this order do not stand in the way of the defendants 9 and 10 pursuing their rights and interests, if any, in respect of the subject property of Ac.6.12 guntas in Sy.No.163 of Solipur, Faroognagar Mandal, Mahabubnagar District or the judgment and decree in O.S.No.58 of 2004 in any appropriate legal proceedings to pursue which they are entitled, if they so desire and are so advised. Subject to the said observation, both the Civil Revision Petitions are dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-11-2011 Ksn [1] AIR 2007 SC 10