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2002 DIGILAW 1265 (AP)

Madanapalle Municipality v. Syed Ahamad

2002-10-30

G.BIKSHAPATHY

body2002
G. BIKSHAPATHY, J. ( 1 ) THIS revision petition is filed against the order, dated 2-11-2001 passed by the learned senior Civil Judge, Madanapalle in I. A. No. 847 of 2000 in O. S. No. 32 of 1999. ( 2 ) THE petitioner is the 7th defendant in o. S. No. 32 of 1999. Respondents 1 and 2 herein filed the said suit for declaration of title and other connected reliefs. The defendants including defendant No. 7, who is the petitioner herein, filed their written statements. When evidence was to commence, the petitioner herein, who is the 7th defendant, filed an application in i. A. No. 847 of 2000 under Order VIII rules 1, 6 and 9 CPC seeking to receive additional written statement in which the plea of declaration of title as a counter claim was raised, by condoning certain delay. The said application was resisted by the respondents herein and the Court below dismissed the application by order dated 2-11-2001, against which the present revision petition is filed by the petitioner- madanpalle Municipality, represented by its commissioner. ( 3 ) THE learned Standing Counsel for the petitioner Madanapalle Municipality submits that the order passed by the lower court is erroneous and contrary to law and that it is always open to the defendant to make a counter claim even after filing of the written statement. In support of his contention the learned Standing Counsel relied on the decision of the Supreme Court in Mahendrakumar and another v. State of madhya Pradesh and others and the decisions of this Court in Kommu China Saidaiah and another v. Jallela Gangamma and another and in K. Ramachandra Rao v. P. Narayan. ( 4 ) THE learned counsel for respondents submits that the stage at which the counter claim has been made is beyond the limits prescribed under Order 8 Rule 6-A of Code of Civil Procedure and therefore, the lower court has rightly dismissed the application. ( 5 ) FOR proper appreciation of the contentions raised on behalf of the parties, it is necessary to refer to the relevant provisions under the Code of Civil procedure. ( 5 ) FOR proper appreciation of the contentions raised on behalf of the parties, it is necessary to refer to the relevant provisions under the Code of Civil procedure. Order 8 rule 6-A C. P. C. which is the relevant provision, reads as under:"6-A (1): 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 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 counterclaim. (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. " ( 6 ) INTERPRETING the said provision the supreme Court in the decision (supra) observed as follows:"r. 6-A (1) of O. VIII Civil P. C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R. 6. A (1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under R. 6a (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. What is laid down under R. 6a (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 R. 6a (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 r. 6. A (1), Civil P. C. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter claim was, therefore, quite maintainable. Under art. 113 of 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 S. 3 (2) (b), limitation Act, had been filed by the appellants within three years from the date of accrual to them of the right to sue. The learned District Judge and the high Court were wrong in dismissing the counter-claim. " ( 7 ) THE learned Single Judge of this Court in the decision (supra) observed that counter-claim can be made by the defendant in respect of cause of action which arose before filing of written statement. Similarly in the decision (supra) yet another learned single Judge of this court observed that counter claim can be preferred by the defendant seeking the relief of setting aside the sale deed even after the written statement has been filed. However, the learned Single Judge of the Karnataka High court in Smt. Parvathamma v. K. R. Lokanath observed that counter-claim can be filed even subsequent to the filing of the written statement provided it relates to the cause of action which had accrued prior to the filing of the written statement or prior to the last date fixed for filing the written statement. ( 8 ) AS can be seen from the decision of the supreme Court (supra), which interprets r. 6. ( 8 ) AS can be seen from the decision of the supreme Court (supra), which interprets r. 6. A of Order 8 of CPC, it is made clear that counter-claim can be made by the defendant even after filing of the written statement, provided the cause of action arose prior to the filing of the written statement or prior to the date fixed for filing written statement subject to further conditions that it should be filed within the limitation prescribed. ( 9 ) THE facts in the case are that the suit is filed for declaration of title and the defendant-petitioner filed written statement on 27-10-1999 disputing the right of the plaintiffs, but however on 4-9-2000 the petitioner-defendant filed a petition seeking permission to receive additional written statement wherein the counter claim was sought by condoning the delay and that the said application was dismissed by the order impugned in this revision. During the pendency of this revision, evidence was commenced before the lower Court. Now the evidence on behalf of the plaintiffs as well as the defendants was already ciosed. The C. R. P. was filed before this Court on 25-1-2002 but no stay was granted till 5-8-2002 and in the meanwhile, evidence was adduced. This Court granted stay of all further proceedings only on 5-8-2002 in the revision petition by which date the evidence on behalf of the plaintiffs and the defendants was already over. Therefore, the question that arises for consideration is whether an application to file counter-claim can be filed after the evidence has been commenced in a suit. ( 10 ) THE very purpose of enacting the provision of Order 8 Rule 6. A of CPC is to see that the suit as well as the counter claim have to be simultaneously decided so as to avoid two different proceedings at a time, as it consumes considerable time for prosecuting the respective suits. Even though the Supreme Court has clearly held in the decision (supra) that counter-claim can be made even after filing of the written statement provided the cause of action arose prior to the filing of the written statement, but no time frame has been prescribed. However, an identical matter came up for consideration before the Karnataka High court. The learned Single Judge of the karnataka High Court in the decision (supra) observed as follows:"a reading of Rs. 6. A to 6. However, an identical matter came up for consideration before the Karnataka High court. The learned Single Judge of the karnataka High Court in the decision (supra) observed as follows:"a reading of Rs. 6. A to 6. G of Civil p. C. makes it clear that the counterclaim has to be treated as a cross-suit and it has to be tried along with the original claim made in the suit. When the counter-claim has to be tried along with the original claim and all the rules of pleading apply to a counter-claim and it becomes a plaint in the cross-suit and the plaintiff is entitled to file a written statement in answer to the counter claim of the defendant, it necessarily follows that a counter claim, if not set up in the written statement, it has to be set up before the issues are framed, at any rate, before recording of the evidence commences. If a counter claim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit because at the time of adducing evidence, he will not be aware of the counter claim, as it will not be on record. Therefore, he cannot be expected to, and he is not required to, adduce evidence having a bearing on the counter-claim. Further allowing the counter-claim to be set up after the evidence is recorded, would be doing nothing but ignoring R. 6. A to R. G. of order VIII of the C. P. C. It would also result in protracting the trial and would defeat the very object of treating the counter-claim as a cross-suit and trying the issues arising in the suit. " ( 11 ) IF the counter claim is to be allowed after the evidence is commenced it frustrates the very purpose and intendment of the provisions contained in R. 6-A. The object of permitting the counter claim is to see that both the suit claim and the counter claim are disposed of simultaneously and when such object is frustrated no useful purpose would be served by allowing the counter claim. Admittedly in the instant case by 5-8-2002 the date on which stay of all further proceedings was granted, evidence on both sides was already closed. Under those circumstances, I do not find that the order of the Court below suffers from any irregularity or illegality. Admittedly in the instant case by 5-8-2002 the date on which stay of all further proceedings was granted, evidence on both sides was already closed. Under those circumstances, I do not find that the order of the Court below suffers from any irregularity or illegality. Thus, I find no merits in the revision petition and it is accordingly dismissed. No order as to costs. ( 12 ) THE learned Standing Counsel for the petitioner, however, submits that the petitioner may be permitted to file a separate suit. I am not inclined to make any observations on this request. If it is open for the petitioner to file a separate suit, this order does not preclude the petitioner from taking recourse an action.