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2010 DIGILAW 1218 (CAL)

Muchiram Kamila v. Joydeb Kamila

2010-09-21

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. BY impugned order being No.66 dated 28 January, 2010 passed by the learned Civil Judge (Junior Division), Second Court at Tamluk, the defendants prayer for filing additional written statement for introducing a counter claim in the suit, was rejected by the learned Trial Judge on two fold grounds; firstly for the reason of delay in applying for leave to file additional written statement for introducing counter claim in the suit and secondly for non-disclosure of the cause of action for the counter claim either in the leave petition or in the proposed additional written statement. The propriety of the said order is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendants/petitioners. 2. HEARD Mr. Tapabrata Chakraborty, learned Advocate, appearing for the petitioners and Mr. Sabyasachi Bhattachajee, learned Advocate, appearing for the opposite parties. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiffs/opposite parties filed a suit for declaration and injunction against the defendants/petitioners herein. The plaintiffs claimed that both the plaintiffs and the defendants have their right of passage over the Ka schedule property. The plaintiff further claimed that the defendant has created obstruction in the use of the said passage by the plaintiff by removing the bricks from a part of such passage. Hence the aforesaid suit for declaration and injunction was filed by the plaintiffs praying for declaration of their joint right of user of the passage over the said Ka schedule property and for permanent injunction for restraining the defendants from raising any obstruction in the use of the said passage by the plaintiff. The defendants are contesting the said suit by filing written statement. In the written statement the defendants contended that the plaintiff is a desperate and greedy person. It was alleged by the defendant that the plaintiff illegally and unlawfully erected a cow shade and Hari temple on the northern part of the suit passage for creating obstruction in the use and enjoyment of the said passage by the defendant. It was further sated by him that when the defendant tried to resist the plaintiff from doing so, the plaintiff himself as well as his other men and agents threatened the defendants with dire consequence. 3. It was further sated by him that when the defendant tried to resist the plaintiff from doing so, the plaintiff himself as well as his other men and agents threatened the defendants with dire consequence. 3. THE trial of the said suit commenced on 17th August, 2009. THE plaintiff has already adduced his evidence in chief on affidavit. THE plaintiffs said witness has also been cross-examined by the defendants. 4. AT this stage of trial of the said suit, the defendants filed an application under Order 8 Rule 9 of the Civil Procedure Code praying for leave to file additional written statement for introducing a counter claim in the said suit. It was stated by the defendants in their said application that though the said defendants in paragraph No.24 of the written statement referred to the construction of illegal cow shade and a Hari temple on the northern side of the suit property by the plaintiff, creating obstruction in the use and enjoyment of the said passage by the defendant but in fact, neither the exact description of such land where such illegal construction was erected, was specified in the said written statement nor any relief by way of removal of the said obstruction was prayed for therein. As such the defendants prayed for leave to file the additional written statement for introducing the relief for removal of the said illegal construction from the said property so that the defendants can use and enjoy the suit passage without any interference from the plaintiff. The defendants such prayer was rejected by the learned Trial Judge on the grounds as aforesaid. Mr. Chakraborty, learned Advocate, appearing for the petitioners, submitted that permission for introducing such counter claim by way of filing additional written statement, cannot be refused, provided however the cause of action for such relief arose prior to the filing of the written statement by the defendants or prior to the date which was fixed for filing of the written statement by the defendant in the suit. Mr. Mr. Chakraborty further submitted that such leave to file additional written statement for introducing a counter claim can be refused only when the defendants want to introduce the counter claim in the suit on the basis of any cause of action which arose after the submission of his written statement or after the expiry of the date which is fixed for filing the written statement by the defendants in the suit. 5. BY referring to a decision of the Andhra Pradesh High Court in the case of Sugesan and Company Private Limited vs. Hindustan Machine Tools Ltd. reported in AIR 2004 Andhra Pradesh 428, Mr. Chakraborty submitted that Honble High Court at Andhra Pradesh, after considering the entire provisions relating to counter claim and/or set off contained in Order 8 Rule 6A to Order 8 Rule 6G of the Civil Procedure Code, held that the counter claim can be raised by the defendants subject to the condition that the cause of action for such counter claim has arisen either before or after filing of the suit or before filing of the written statement and/or before expiry of the date fixed for filing of written statement. 6. THUS, this Court finds that Andhra Pradesh High court held that the upper limit for filing such counter claim is extended upto the date of filing the written statement and/or the date which is fixed for filing such written statement in the suit. Relying upon the said decision Mr. Chakraborty submitted that since the cause of action on the basis of which the defendants wanted to introduce the counter claim by filing the additional written statement in the said suit, arose before the filing of the written statement, the learned Trial Judge ought to have permitted the petitioner to file such additional written statement in the suit. To establish that such cause of action arose prior to filing of the written statement, Mr. Chakraborty referred to paragraph No.24 of his clients written statement wherein the foundation of such cause of action was disclosed by the defendants. He thus contended that since foundation of such cause of action was disclosed in the written statement, there cannot be any dispute about the accrual of such cause of action prior to filing of the written statement. Chakraborty referred to paragraph No.24 of his clients written statement wherein the foundation of such cause of action was disclosed by the defendants. He thus contended that since foundation of such cause of action was disclosed in the written statement, there cannot be any dispute about the accrual of such cause of action prior to filing of the written statement. As such, he contended that leave to file additional written statement should have been granted to the petitioner by the learned Trial Judge. 7. MR. Chakraborty further submitted that since no part of the counter claim is barred by limitation, the learned Trial Judge ought not to have rejected the petitioners prayer for such leave on the ground of delay. MR. Chakraborty further submitted that if the entire pleading of the plaintiff made out in the plaint as well the defence disclosed by the defendants in their original written statement, is taken into consideration along with the proposed additional written statement and the leave petition then it cannot be held that the cause of action for such counter claim has not been disclosed by the defendants in his pleading. MR. Chakraborty thus invited this Court to interfere with the impugned order. MR. Bhattacharjee, learned Advocate, appearing for the opposite parties, refuted such submission of MR. Chakraborty by submitting that the defendants cannot be permitted to introduce such counter claim at this stage of the trial of the suit when the examination of the plaintiffs witness has already commenced. MR. Bhattacharjee submitted that the introduction of counter claim either by amendment of the written statement or by filing an additional written statement cannot be permitted after framing of issues in the suit inasmuch as grant of such permission after framing of issue in the suit, was discarded by the Karnataka High Court in the case of Parvathamma vs. K.R. Loknath reported in AIR 1991 Karnataka 283. 8. ON perusal of the said decision, this Court finds that it was held therein that the counter claim has to be set up before the issues are framed, even though such counter claim could not be introduced in the written statement. 8. ON perusal of the said decision, this Court finds that it was held therein that the counter claim has to be set up before the issues are framed, even though such counter claim could not be introduced in the written statement. It was further held therein that if a counter claim is permitted to be set up after the evidence is adduced, it would cause prejudice to the plaintiff in the suit because at the time of adducing evidence, he was not aware of the counter claim, as it was not on record at the time of adducing evidence and thus, the plaintiff was neither expected nor he was required to adduce evidence on such counter claim. It was further held therein that if the counter claim is allowed to be set up after the evidence is recorded, then such permission will be in violation of the provision contained in Rule 6A to Rule 6G of the Order 8 of the Civil Procedure Code. It was further observed therein that if such permission is granted after the commencement of trial of the suit, then it would also result in protracted trial and would defeat the vary object of treating the counter claim as cross suit and trying the issue arising in the suit and in the counter claim at a time. Mr. Bhattacharjee further submitted that the principle which was laid down by the Honble Karnataka High court in the aforesaid decision was also followed by this Honble Court in the case of Oriental Ceramic Products Private Limited vs. Calcutta Municipal Corporation reported in AIR 2000 Calcutta page 17 wherein it was held that if after settlement of issue and/or after closure of the plaintiffs evidence, the defendants prayer for introduction of the counter claim is accepted, then it is needless to comment that the plaintiff would be taken by surprise and would be seriously prejudiced in defending the counter claim. Relying upon the decision Mr. Bhattacharjee supported the impugned order passed by the learned Trial Judge. Mr. Bhattacharjee further submitted that even the counter claim has not been framed in the manner as it should have been framed i.e. like a plaint. Mr. Bhattacharjee contended that the counter claim being a cross suit the pleadings in the counter claim must conform to the forms of pleadings in the plaint. Mr. Bhattacharjee further submitted that even the counter claim has not been framed in the manner as it should have been framed i.e. like a plaint. Mr. Bhattacharjee contended that the counter claim being a cross suit the pleadings in the counter claim must conform to the forms of pleadings in the plaint. He pointed out from the leave petition as well as from the proposed counter claim that even the date when such cause of action for such counter claim arose, has not been mentioned in the counter claim. Thus Mr. Bhattacharjee submitted that the defendants such prayer for grant of such leave to file counter claim, on the basis of disclosure of incomplete cause of action, was rightly rejected by the learned Trial Judge in the facts of the instant case. 9. AFTER considering the submission of the learned Counsel of the respective parties, this Court finds much substance in the submission of Mr. Bhattacharjee to the effect that if the defendant is permitted to introduce the counter claim in his pleading at this stage of trial of the suit, the plaintiff will not only be taken by surprise but also will be seriously prejudiced in defending the counter claim. This Court, on careful consideration of the decisions cited by Mr. Bhattacharjee, holds that the principles laid therein squarely support the aforesaid submission of Mr. Bhattacharjee. 10. THOUGH this Court principally agrees with the submission of Mr. Chakraborty that the counter claim can be allowed to be raised even after filing of the written statement provided however the cause of action for such counter claim arose before filing of the written statement or before expiry of the date of filing of the written statement in the suit but still then this Court cannot disagree with the submission of Mr. Bhattacharjee that such counter claim ought to have been raised by the defendant before settlement of issues in the suit and/or at least before commencement of trial of the suit. I have already indicated above that the trial of the said suit commenced on 17th August, 2009 when the plaintiffs witness started giving evidence in the said suit whereas the application seeking leave of the Court to file additional written statement for introducing the counter claim in the suit was filed by the defendant on 3rd December, 2009. I have already indicated above that the trial of the said suit commenced on 17th August, 2009 when the plaintiffs witness started giving evidence in the said suit whereas the application seeking leave of the Court to file additional written statement for introducing the counter claim in the suit was filed by the defendant on 3rd December, 2009. Thus this Court has no hesitation to hold that such petition was filed by the defendant after commencement of the trial of the suit. Thus if the principles which were laid down by this Honble Court as well as by the Karnataka High Court as referred to above are applied to the instant case then this Court has no hesitation to hold that the learned Trial Judge rightly rejected the defendants such prayer for filing additional written statement for introducing the counter claim in the suit. That apart on perusal of the written statement this Court finds that the defendant referred to the cause of action for such counter claim in paragraph No.24 of the written statement. Thus this Court holds that such cause of action for the counter claim certainly arose prior to the filing of the written statement. As such the restriction imposed in Order 8 Rule 6A of the Civil Procedure Code in making counter claim in such suit, is not attracted in the instant case, but at the same time, this Court holds that in the absence of the disclosure of the exact date when such cause of action, in fact, arose, the Court cannot ascertain the question of limitation regarding such counter claim. In my view non-disclosure of the exact date when such cause of action of such counter claim arose is fatal as the forms of pleadings contained in Appendix A of the Civil Procedure Code prescribes that facts showing when the cause of action arose and that the Court has jurisdiction to try such counterclaim and that the value of the subject matter of the suit for the purpose of jurisdiction and payment of Court fees, are statutory pleadings which are required to be pleaded in the plaint and since the counter claim is a cross suit, such counter claim should also contain those statutory pleadings. In the absence of such non-disclosure of the aforesaid materials in the counter claim the pleading, in my view, is incomplete and/or defective and on the basis of such incomplete cause of action the defendant cannot be permitted to include counter claim in the suit. 11. AS such this Court holds that the learned Trial Judge did not commit any illegality in rejecting the defendants prayer for leave to file the additional written statement for introducing the counter claim in the instant case for nondisclosure of complete cause of action. This Court finds no reason to interfere with the impugned order. The revisional application thus stands rejected.