Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 2243 (ALL)

Avaneesh Kumar v. Ravi Datt

2008-11-07

SANJAY MISRA

body2008
JUDGMENT Heard Sri Ramendra Asthana learned counsel for the petitioner. 2. According to the plaintiff petitioners the claim of the plaintiff for permanent injunction in the property in question was raised in Civil suit No. 639 of 1999 Avneesh Kumar and others Vs Ravi Datt and another. He states that the defendants have filed a Suit No. 545 of 2000 Ravi Datt Vs Avneesh Kumar and others relating to the very same property praying for mandatory injunction and possession of the property which was in effect a cross suit filed by the respondents. According to Sri Asthana the petitioner as also the respondent filed their their written statements in each others suits whereas the respondents also filed counter claim on 14.2.2006 after the plaintiff petitioner had amended his plaint on 25.11.2004. Whereafter the respondent withdrew their suit No. 545 of 2000 on 1.11.2006. Sri Asthana states that due to a subsequent development over the property in question the petitioners being plaintiffs of Suit No. 639 of 1999 had amended their plaint by seeking demolition of certain construction over the property in question alleged to have been raised by the defendants of the suit who are respondents in the present writ petition. The petitioner plaintiff filed an application for rejecting the counter claim which has been considered by the Trial Court and rejected by the impugned order dated 12.3.2007 (Annexure 10 to the writ petition). The Revisional Court has also rejected the Revision filed by the petitioners by the impugned order dated 28.8.2008 (Annexure 11 to the writ petition) 3. Learned counsel for the petitioner has submitted that the provisions of Order VIII Rule 6 A of the Code of Civil Procedure are very clear and that the defendants could not file a counter claim in a suit after they had filed their written statement or the time limit for filing written statement has expired. According to him the written statement had been filed by the defendants on 7.4.2000 in the suit No. 639 of 1999 and it was much after filing of the written statement that they have come up with the counter claim on 14.2.2006 and therefore the impugned orders being violative of Rule 6 A of Order VIII CPC are liable to be set aside. He has placed reliance on the provisions of Order XXIII Rule 1(4) to state that when a plaintiff files any suit or withdraws from any suit or part of a claim without permission of the court he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. 4. Having considered the submission of learned counsel for the petitioner and perused the impugned orders the courts below have rejected the application of the petitioner plaintiff on the ground that the plaintiff had amended his plaint by seeking a further relief of demolition of certain construction lying over the property in question. The courts below were of the view that once the plaint was amended the right of the defendants to file additional written statement against the amended part of the plaint came into effect and therefore the provisions of Rule 6 A of Order VIII CPC would entitle the defendants to file their counter claim either before or along with the written statement to the amended plaint, or within limited time available to the defendant to file his written statement. In the present case it is not disputed that the plaintiff has amended his plaint on 25.11.2004 (Annexure 5 to the writ petition) and the amendment was incorporated on 1.12.2004. The written statement to the unamended plaint has admittedly had been filed on 7.4.2000 by the defendants much prior to such amendment in the plaint. Consequently by virtue of the provisions of Rule 6A of Order VIII CPC the right of the defendant stood revived in so far as the amended part of the plaint is concerned. Since he could file a written statement against that part of the amended plaint he could also prefer a counter claim either before or along with the written statement to such amended plaint. 5. It is the case of the petitioner that an amendment made under Order VI Rule 17 CPC would be covered by the doctrine of ''relating back' and hence the amendment of the plaint after its incorporation on 1.11.2004 would related back to the date of filing the plaint i.e.23.12.1999 and hence the right to file counter claim under Order VIII Rule 6-A, CPC could not entitle the defendants to file their counter claim subsequent to their having filed their written statement on 7.4.2000. 6. 6. Learned counsel for the petitioner has further placed reliance upon a decision of the Hon'ble Apex Court in the case of Ramesh Chand Ardawatiya Vs Anil Panjwani (2003) 7 Supreme Court Cases 350 and has placed reliance on paragraph 28 therein. Paragraph 28 of the said decision has clearly laid down the law with respect to the scheme of Order VIII CPC as amended by Act No. 104 of 1976 and the Hon'ble Supreme Court has held that there are three modes of pleadings or setting up a counter claim in a Civil Suit. The said three modes as held by the Hon'ble Apex Court are quoted here under- 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 plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8 Rule 9 CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. 7. The purpose of the provision enabling filing of a counter claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. 7. From the aforesaid law laid down by the Hon'ble Apex Court it is quite apparent that the purpose of the provisions is to avoid multiplicity of judicial proceedings and inconvenience to the parties by enabling claims and counter claims in disputes between the same parties to be decided in the courts in same proceedings. The law laid down by the Hon'ble Apex Court is squarely applicable to the facts and circumstances of the present case inasmuch as Rule 6-A of Order VIII CPC clearly provides that the counter claim can be filed in respect of a cause of action accruing to the defendant either before or after filing of the suit. The said words used in the aforesaid provisions clearly indicate that a counter claim can be filed on a cause of action even arising after filing of the suit. Of course the stage at which the counter claim is to be filed has been clearly defined in Rule 6-A of Order VIII CPC. Such stage is considered even at a stage after filing of the suit. Therefore it has to be found as to when the cause of action arose to the defendant to file the counter claim The stage would normally be before the defendant has delivered his defence or before the time limited for delivering his defence has expired. 8. When the plaint was presented the defendant after service of notice put in his written statement on 7.4.2000. At this stage the defendant was only required to put in his defence but could also file his counter claim as of a right under Order VIII Rule 6-A CPC. In the present case the plaintiff amended his plaint on 25.11.2004. By this amendment he brought in a fresh relief of mandatory injunction and possession against the defendant. This relief related to a part of the property in dispute. In the present case the plaintiff amended his plaint on 25.11.2004. By this amendment he brought in a fresh relief of mandatory injunction and possession against the defendant. This relief related to a part of the property in dispute. The father of the plaintiff petitioners had purchase Eastern half portion of the house on 14.12.1954 from one Sri Lallu and further had purchased land towards Western side on 5.5.1958 from the widow of Sri Lallu. The father of the plaintiff petitioners sold the Eastern half of the house to Sri Vishnu Dutt and Sri Rama Dutt on 16.3.1963 and handed over possession of his balance share in the property to one Sri Abrar. In the written statement the defendants claimed to be owners of the disputed property by virtue of a decree passed in an earlier suit between the parties. Therefore, upon such pleadings the plaintiff amended his plaint relating to a portion of the property alleged to have been handed over by the plaintiff's father to late Sri Abrar. It was upon this amendment relating to such portion that the defendants have filed their counter claim. 9. Since the cause of action to the defendant in the present case has arisen only upon amendment of the plaint by the plaintiff relating to the afore mentioned portion and it is after filing of the suit the defendant had a right of submitting his written statement and counter claim after amendment of the plaint although he had filed his written statement prior to such amendment to the unamended plaint. When the right of the defendant to prefer a counter claim along with his written statement on the cause of action which arose after filing of the suit cannot be disputed the only requirement for the defendant to maintain his counter claim is the time limited for delivering his defence. Hence even he files the same at the time of delivering his defence or before the time limited for delivering his defence has expired he can maintain his counter claim. Hence even he files the same at the time of delivering his defence or before the time limited for delivering his defence has expired he can maintain his counter claim. In the present case it is not disputed that the counter claim was filed only after the amendment of the plaint and when he was delivering his defence by filing written statement to the amended plaint, consequently he had the cause of action as provided in Rule 6-A. The law laid down by the Hon'ble Apex Court in the case of Ramesh Chand Ardawatiya Vs Anil Panjwani(supra) is squarely applicable in the facts and circumstances of the present case although the Hon'ble Supreme Court was considering a case of filing a counter claim against the plaint and no question of an amended plaint was considered by the Hon'ble Supreme Court in the aforesaid case. 10. The second submission of learned counsel for the petitioner relating to Rule 1(4) of Order XXIII CPC is concerned it is no doubt true that the respondents had withdrawn their suit No. 545 of 2000 which related to the property in question and appears to have been between the same parties. The aforesaid provision provides that such a plaintiff would be precluded from instituting any fresh suit in respect of the subject matter of the suit. The defendant respondent have admittedly not filed a fresh suit and the suit No. 639 of 1999 filed by the plaintiff petitioner was pending even on the date the defendant respondent had filed the suit No. 545 of 2000. Consequently when the suit had been withdrawn by the defendant only after they preferred their written statement and counter claim to the amended plaint in Suit No. 639 of 1999 it cannot be held that the defendants were precluded from contesting the suit of the plaintiff petitioner and could not maintain their counter claim. They have not brought in any fresh suit or counter claim after withdrawing their suit No. 545 of 2000 on 1.11.2006. The plaint in Suit No. 639 of 1999 was amended on 25.11.2004, the written statement and counter claim to the amended plaint was filed on 14.2.2006 and the defendants suit No. 545 of 2000 was withdrawn on 1.11.2006. They have not brought in any fresh suit or counter claim after withdrawing their suit No. 545 of 2000 on 1.11.2006. The plaint in Suit No. 639 of 1999 was amended on 25.11.2004, the written statement and counter claim to the amended plaint was filed on 14.2.2006 and the defendants suit No. 545 of 2000 was withdrawn on 1.11.2006. This is a clear case where the provisions of Order VIII would be applicable to avoid multiplicity of judicial proceedings and to enable the parties to get their claims and counter claims decided amongst themselves in the courts in the same proceeding and therefore it cannot be held that the counter claim of the defendant respondent would be precluded by the provisions of Order XXIII Rule 1(4) of the Code of Civil Procedure. 11. For the aforesaid reasons no interference is required in the impugned orders passed by the courts below. This writ petition has no merit. However, it is made clear that this order will not preclude the petitioner plaintiffs from filing their re-plication only for the reasons of this order. 12. With the aforesaid observation the writ petition stands finally disposed of. 13. No order is passed as to costs.