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2011 DIGILAW 1309 (CAL)

Shyamal Kumar Das v. Sanjoy Chowdhury

2011-09-21

HARISH TANDAN

body2011
JUDGMENT 1. THIS revisional application is directed against an Order No. 81 dated 26th September, 2007, and Order dated 7th January, 2008, passed by the learned Civil Judge (Senior Division), First Court at Barasat in Title Suit No. 84 of 1997, by which an application for reconsideration of an order dismissing an application for accepting counter-claim was rejected. 2. IN a suit for specific performance of an agreement for sale, the petitioner appeared and disclosed his defence by filing the written statement. Subsequently, the opposite party filed an application for amendment to incorporate the alternative relief of refund of the earnest money which was eventually allowed. The petitioner was permitted to file additional written statement thereafter. After filing the additional written statement, the petitioner sought to make counter-claim under Order 8 rule 6A of the Code of Civil Procedure and filed an application for acceptance thereof. 3. IT appears that the Trial Court, while considering the gamut of the provisions contained under Order 8 Rule 6A of the Code of Civil Procedure, observed that the counter claim is maintainable if the cause of action arose after the institution of the suit and before the delivery of defence. IT was held that after filing of the written statement, the counter-claim cannot be made by the defendant-petitioner. 4. THE Apex Court in case of Ramesh Chand Ardawatiya vs. Anil Panjwani, reported in 2003(7) SCC 350, held that the counter-claim can be set up in three eventualities - firstly, by filing a written statement under Rule 1 of Order 8 and incorporating the counter-claim as envisaged under Order 8 Rule 6A of the Code of Civil Procedure, secondly, by way of an amendment of the written statement with the leave of the Court incorporating the counter-claim, and thirdly, counter claim by way of a subsequent pleading under Rule 9 of Order 8 of the Code of Civil Procedure. 5. IN the first two eventualities the counter claim cannot be brought on record of his right but some leverage of discretion is left to the Court in third eventuality under Order 8 Rule 9 of the Code of Civil Procedure. 6. THE said judgment was further applied by the Apex Court in the case of Gayathry Women's Welfare Association vs. Gowramma and Anr, reported in AIR 2011 SC 785 . 6. THE said judgment was further applied by the Apex Court in the case of Gayathry Women's Welfare Association vs. Gowramma and Anr, reported in AIR 2011 SC 785 . In addition to the above proposition, the Apex Court further held that once an issue is settled, the Court should not normally allow the counterclaim to occupy the record. 7. IN view of the ratio laid down by the Apex Court in the above report, I find that the counter-claim, after the disclosure of the defence, cannot be allowed to be incorporated except on the above three eventualities as held in Ramesh Chand Ardwatiya (supra). 8. ON those legal aspects, I do not find any infirmity or illegality in the impugned order passed by the Trial Court. 9. THUS, the revisional application is hereby dismissed. 10. IN view of the dismissal of the main revisional application, there is no further adjudication in these two applications being CAN No.7603 of 2011 and CAN No.2112 of 2009 are also dismissed accordingly. 11. THERE shall be no order as to costs. 12. URGENT Photostat certified copy of this order, if applied for, be given to the parties on priority basis.