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2006 DIGILAW 194 (PAT)

Parmendra Nath Singh v. Anila Jain

2006-02-26

NAVANITI PRASAD SINGH

body2006
ORDER : 1. Pursuant to notice issued by this Court, the plaintiff/opposite party no. 1 has appeared. Heard Shri J.S. Arora for the principal defendant/petitioner and Shri Keshav Srivastava, learned Senior Counsel appearing on behalf of the plaintiff/opposite party no. 1. 2. The present civil revision application is directed against the ORDER :dated 11.8.2005 passed by the learned Sub-Judge VIII, Patna in Title Suit No. 324 of 2000 wherein the defendant/petitioner's application to amend his written statement, in reducing a claim in the nature of a counter claim, has been rejected primarily on two grounds. Firstly, the counter claim not having been raised in the written statement itself could not be permitted to be raised thereafter in view of ORDER :8, Rule 6A of the Code of Civil Procedure. Secondly, it has been found that the counter claim by way of amendment was being sought to be raised after about four years of filing of the written statement and, as such, in view of the trial Court, it was barred and, therefore, no useful purpose would be served by allowing the amendment. 3. Mr. J.S. Arora, learned counsel appearing for the defendant/petitioner submits that it is now settled by several decisions of the Apex Court that in terms of ORDER :8, Rule 6A, a defendant is not precluded from raising a counter claim which is to be tried as a counter suit once he has filed the written statement. He refers to ORDER :6, Rule 9 which makes an exception in case of counter suits or counter claims and clearly provides that there could be pleadings in respect of those two categories after written statement is filed. Mr. Srivastava, learned Senior Counsel appearing on behalf of the plaintiff/opposite party has conceded to this extent that the claim in the nature of counter claim could be raised even after filing of the written statement in view of the JUDGMENT : of the Apex Court in the case of Mahendra Kumar and another vs. State of Madhya Pradesh and other, AIR 1987 Supreme Court 1395 and also in the case of Smt. Shanti Rani Das Dewanjee vs. Dinesh Chandra Day, AIR 1997 Supreme Court 3985. It is, thus held that the first ground on which the trial court disallowed the proposed amendment is legally untenable. 4. It is, thus held that the first ground on which the trial court disallowed the proposed amendment is legally untenable. 4. Coming to the second ground, Shri Srivastava, learned Senior Counsel appearing on behalf of the plaintiff/opposite party, with reference to the aforesaid two decisions of the Apex Court, has tried to canvass that the JUDGMENT :s laid down that the counter claim is to be based on a right to sue which should occur or be occurring at the time when written statement was filed. Any subsequent right to sue occurring would not give cause to file a counter claim. A reference to the two cases aforesaid would show that the Apex Court has held that while counter claim would be raised even after filing of the written statement where the counter claim is for money, the period of limitation would be three years in terms of Article 113 of Limitation Act. In both the cases, it was found that the claims raising counter claims was filed by the defendant within three years of the written statement and, as such, they were held to be within time. The said decisions go no further. I am afraid it does not follow from the said decisions that in all matters as a matter of law, the application for raising counter claim has to be filed within three years of filing of the written statement. On the other hand, Shri J.S. Arora, learned counsel appearing for the defendant/petitioner submits firstly that he did have a subsisting right to sue which was a continuing right to sue for having been illegally deprived of possession of his premises. There being a continuing cause of action, the claim was within period of limitation. Secondly, it was submitted that by allowing the amendment raising claim of counter claims, no rights are being decided, no right is being accepted. The Court is only putting the parties to notice of issues to be decided in duly constituted suit. Lastly, it was submitted that whether the cause of action to sue is barred by provisions of the Limitation Act is a mixed question of fact and law which is to be decided in course of trial and not at this stage. 5. Having considered the rival contentions as noticed above and the decisions as noticed above, I am unable to accept the view as canvassed by Shri Srivastava. 5. Having considered the rival contentions as noticed above and the decisions as noticed above, I am unable to accept the view as canvassed by Shri Srivastava. The two JUDGMENT :s do not lay down in affirmative terms that cause of action to sue for the purposes of counter claim under ORDER :8, Rule 6A is co-terminus with the written statement and, therefore, all suits raising counter claim in monetary terms must be within three years of the written statement. Shri Arora has relied on an unreported JUDGMENT : of the Supreme Court going from this State itself. In that case, in a partition suit governed by Mohammedan Law, long after written statement was filed, the defendants sought amendment of the written statement to raise a counter claim. They asserted that as the plaintiffs were claiming to be heirs and descendants, they would equally be bound to pay and honour the dower claim of rupees five lacs. Undisputedly, this counter claim was filed after five years of the written statement. This was allowed by the Trial Court. A Civil Revision being Civil Revision No. 333 of 1999 was preferred by the plaintiff to this Court. This Court by JUDGMENT : dated 9.8.1999 allowed the civil revision application and consequently disallowed the amendment of the written statement on the ground that the claim was barred by limitation. Having been made long after filing of the written statement, the matter was taken to the Apex Court. The Apex Court reversed the JUDGMENT : and affirmed the ORDER :of the Trial Court allowing the amendment in Civil Appeal No. 5346 of 2000 arising out of SLP (Civil) No. 13679 of 1999. While doing so, the Apex Court clearly held while allowing the defendant to raise counter claim that it would be subject to question of limitation being decided by the trial court in the suit itself. This view of the Hon'ble Supreme Court is consistent and one needs to notice only in the case of Ragu Thilak D. John vs. S. Rayappan and other, (2001)2 SCC 472 , wherein the Hon'ble Court has held that whether the suit is barred by limitation or not is a mixed question of fact and law to be decided in course of trial. By merely allowing the amendment petition, it does not amount to allowing the relief as prayed for. By merely allowing the amendment petition, it does not amount to allowing the relief as prayed for. I am, therefore, of the view that counter claim having been raised, the same should have been permitted to be registered and taken note of. Obviously, the parties would then be entitled to proceed in accordance with the provisions of ORDER :8, plaintiff would be entitled to file his written statement and issues would again be framed in this matter as also in respect to the question of limitation, if any, as raised by the plaintiff. 6. I, accordingly, set aside the impugned ORDER :and allow this civil revision application. The defendant would now be permitted to amend his written statement subject however to the plaintiff's right to file written statement and the Court would accordingly proceed. The application, thus, stands allowed.