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2011 DIGILAW 1962 (RAJ)

Pushpa Sharma v. Civil Judge

2011-09-13

MAHESH BHAGWATI

body2011
JUDGMENT 1. - Heard the learned counsel for the parties and carefully perused the relevant material on record. 2. Having considered the submissions made by the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that the respondents-defendant nos. 1 and 2 filed their written statement of defence on 7th December, 2007 and set-up a counter claim therein. The petitioner-plaintiff submitted the written statement of the counter claim in the Court, but the learned trial court did not take the counter claim on record as it was filed after 20 months of the setting up of counter claim by the respondents-defendants. 3. Learned counsel for the petitioner canvassed that the provisions of Order 8, Rule 1 CPC are not applicable in the instant case as it is not a written statement of defence to be filed in reply of the plaint. It is a written statement in answer to the counter claim of the defendant, for which no time limit has been prescribed. Thus, the case of the petitioner is covered by sub-rule (3) of Rule 6A Order 8 CPC. Hence, the learned trial court has erred in gainsaying to take the written statement in answer to the counter claim on record and thus, the impugned order deserves to be set-aside. 4. He has cited the judgments rendered in the case of All India Reporter Ltd., Bombay with Branch Office at Nagpur and another v. Ramchandra Dhondo Datar, reported in AIR 1961 Bombay 292 (V 48 C 71) ; and in the case of Dattaram Krishnanath Pednekar v. Pandurang K. Pednekar reported in [2010] 4 ALL.MR 525/[2010] 4 BomCR 481 . 5. E. converso, the learned counsel for the respondents-defendant has defended the impugned order and stated the same to be just and proper. He further contended that the case of the petitioner-plaintiff is covered by Rule 6G Order 8 and not by Rule 6A (3) of Order 8 CPC. Rule 6G Order 8 contemplates that the Rules relating to written statement by defendant shall apply to a written statement filed in answer to a counter claim. He has cited the judgment of Hon'ble Apex Court rendered in the case of Mohammed Yusuf v. Faij Mohammad and others reported in (2009) 3 Supreme Court Cases 513 . 6. Rule 6G Order 8 contemplates that the Rules relating to written statement by defendant shall apply to a written statement filed in answer to a counter claim. He has cited the judgment of Hon'ble Apex Court rendered in the case of Mohammed Yusuf v. Faij Mohammad and others reported in (2009) 3 Supreme Court Cases 513 . 6. In the case of Dattaram Krishnanath Pednekar v. Pandurang K. Pednekar (supra), the High Court of Judicature at Bombay (Panaji Bench) observed thus: "15. Reverting to the controversy, that the provisions of Order 8, Rule 1 , do not apply to a written statement in answer to the counterclaim is a question which is no longer res integra, with the decision of this Court in the case of Mrs. Shalini Nunes Mascarenhas and others v. Mr. Trevor Nunes and another (supra) wherein this Court has held that the filing of the written statement to the counter-claim, is not covered by Order 8, Rule 1 CPC but it is governed by Order 8, Rule 6A (3), CPC. In terms of the said sub-rule, the trial Court is expected to fix time for filing the written statement to the counter-claim. The necessary conclusion, therefore, is that Order 8, Rule 1 , CPC is not applicable to the written statement filed by the plaintiffs to the counter-claim filed by the Defendants. In my view, the provisions of Rule6-G of Order 8 have nothing to do with the provisions of sub-rule (3) of Rule6-A, Order 8. When Rule 6-G, Order 8 states that the Rules relating to a written statement by Defendant shall apply to a written statement filed in answer to a counter-claim. It only refers to the contents of the W.S. And has nothing to do with the time limit set out for filing of the written statement in answer to counter-claim, in sub-rule (3) of Rule 6-A, Order 8. Likewise, when sub-rule (4) of Rule 6A Order 8 provides that the counter-claim shall be treated as a plaint and governed by the Rules applicable to plaints, it has nothing to do with Order 8 but will have everything to do with Order 7, which deals with contents of a plaint. 16. Likewise, when sub-rule (4) of Rule 6A Order 8 provides that the counter-claim shall be treated as a plaint and governed by the Rules applicable to plaints, it has nothing to do with Order 8 but will have everything to do with Order 7, which deals with contents of a plaint. 16. Therefore, the conclusion is inescapable that the time limit of filing a W.S. In answer to a counter-claim is governed by sub-rule (3), Rule 6-A, Order 8, CPC i.e. within such time as may be fixed by the Court." 7. Adverting to the facts of the instant case, it is noticed that the petitioner-plaintiff, albeit, filed the written statement in answer to the counter claim 20 months after setting up of counter claim by the respondents-defendants, but it is also found that the learned trial court never fixed any time period to file the written statement. Had the learned trial court fixed any time period and directed the petitioner-plaintiff to file the written statement in answer to the counter claim of the defendant within such period, then undeniably the court would have refused to take the written statement on record, but in the instant case no such time limit was ever fixed by the learned trial court. It appears that the provisions of Order 8, Rule 6A (3) CPC escaped the notice of the learned trial court while passing the impugned order and that seems to be the reason that the trial court did not take the written statement in answer to the counter claim on record. 8. Learned counsel for the respondents-defendant cited the judgment of Mohd. Yusuf (supra) in support of his argument and drew my attention to para 11(15) of the same, but the argument of the learned counsel for the respondents is not found to be sustainable as the provisions of Order 8, Rule 1 CPC are not at all applicable in the case of the petitioner-plaintiff. Thus, the judgment of Mohd. Yusuf does not hold good in the instant case. 9. The learned trial court is found to have dismissed the application of the petitioner with regard to taking the written statement on record simply on the ground of delay. The learned trial court ought to have applied the provisions of Rule 6A (3) instead of Rule 1 Order 8 CPC while dealing with the application of the petitioner. 9. The learned trial court is found to have dismissed the application of the petitioner with regard to taking the written statement on record simply on the ground of delay. The learned trial court ought to have applied the provisions of Rule 6A (3) instead of Rule 1 Order 8 CPC while dealing with the application of the petitioner. He gravely erred in passing the impugned order. 10. The impugned order is found to have been passed by the learned trial court sans assigning any cogent reason, which deserves to be set-aside and considering the facts of the case, in my view, this writ petition deserves to be succeeded. 11. For the reasons stated above, the writ petition is allowed and the order dated 13th November, 2010 passed by Civil Judge (Jr. Division), Ajmer City (West) is hereby set-aside. The written statement in answer to the counter claim of the respondents-defendant filed by the petitioner-plaintiff, if yet not taken on record, shall now be taken on record on the next date of hearing. 12. Consequent upon the disposal of writ petition, the stay application, filed therewith, does not survive and that also stands disposed of.Petition allowed. *******