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2011 DIGILAW 452 (MP)

Sushila Devi v. Khalil Ahmed

2011-04-13

ALOK ARADHE

body2011
JUDGMENT ( 1. ) IN this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 12-3-2010 passed by the Trial Court by which the Trial Court has taken on record the counter claim filed by respondent/defendant. ( 2. ) THE facts, giving rise to filing of the writ petition briefly stated, are that the petitioner filed the civil suit seeking the relief of eviction against the respondent defendant on the grounds enumerated under Section 12 (1) (a) and (c) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). THE respondent despite receipt of the summons did not appear and consequently the suit was decreed ex parte on 17-11-2005. However, on an application being made by the defendant, the ex parte decree was set aside. Thereafter, the defendant filed the written statement on 16-1-2008. THE plaintiff filed the examination in chief of the witnesses in the form of affidavit on 13-1-2009 and thereafter the case was fixed for cross- examination of the plaintiff's witnesses. On 15-12-2009 the respondent defendant filed the counter-claim in which the declaration was sought that the plaintiff is not the owner of the suit house on the basis of the sale deed executed in her favour and the suit property be declared as nazul property. THE defendants in his counter claim stated that cause of action for filing of the counter claim accrued on 11-8-2009. THE Trial Court vide impugned order dated 12-3-2010 in view of the decision of the Supreme Court in the case of State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1395 and Sugesan and Co. Pvt. Ltd., Madras Vs. Hindustan Machine Tools Ltd., Hyderabad, AIR 2004 AP 428 , and with a view to avoid multiplicity of the proceedings, took on record the counter-claim filed by respondent-defendant. Learned Counsel for the petitioner submitted that the Trial Court has grossly erred in passing the impugned order. It is further submitted that the suit for eviction has to be decided on the basis of contract of tenancy and the question of title cannot be gone into the suit for eviction. It was further submitted that since the respondent had already filed the written statement therefore, it was not open for him to file the counter claim. It is further submitted that the suit for eviction has to be decided on the basis of contract of tenancy and the question of title cannot be gone into the suit for eviction. It was further submitted that since the respondent had already filed the written statement therefore, it was not open for him to file the counter claim. In support of aforesaid proposition, learned Counsel for the petitioner has placed reliance on the decision of this Court in the case of Ramcharan Shukhlal Vs. Daulat Munniram, 1996 MPLJ 192 . ( 3. ) ON the other hand, learned Counsel for the respondent submitted that the counter claim can be filed after filing of the written statement and the Trial Court has rightly passed the order impugned in the writ petition. The cause of action for filing of the counter claim had accrued to the defendant after filing of the written statement. In support of his submissions, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in Shree Rameshwara Rice Mills, Thirthahalli (supra), State Bank of India Vs. Ranjan Chemicals Ltd. and another, 2007 (2) MPLJ 18, Sugesan and Co. Pvt. Ltd., Madras (supra), Nini Kumar Jain Vs. Smt. Neena Devi and others, AIR 2007 NOC 1550 (P and H) as well as decision of the Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508 = (2003) 7 SCC 350. ( 4. ) I have considered the submissions made by learned Counsel for the parties. A close scrutiny of the provision of Order 8 reveals that there are three modes of setting up a counter claim in a civil suit. Firstly, the written statement filed under Order 8 Rule 1, may itself contain a counter-claim. Secondly, a counter claim may be preferred by way of amendment in the written statement subject to the leave of the Court. Thirdly, a counter claim may be filed by way of a subsequent pleading under Order 8 Rule 9. Firstly, the written statement filed under Order 8 Rule 1, may itself contain a counter-claim. Secondly, a counter claim may be preferred by way of amendment in the written statement subject to the leave of the Court. Thirdly, a counter claim may be filed by way of a subsequent pleading under Order 8 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 vested in the Court, either under Order 6 Rule 17 of the Code of Civil Procedure, if sought to be introduced by way of amendment or subject to exercise of discretion conferred on the Court under Order 8 Rule 9 of the Code of Civil Procedure if sought to be placed on record by way of subsequent pleading. If the consequence of permitting a counter claim either by way of amendment or by way of subsequent pleading would be, prolonging of the trial, complicating the smooth flow of proceedings or causing a delay in the progress of the suit, the Court would be justified in exercising its discretion not in favour of permitting the belated counter claim. Generally speaking, a counter claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case is set down for trial, and more so when the trial has already commenced. Refusal on the part of the Court to entertain the belated counter claim by way of subsequent pleading may not prejudice the defendant because in spite of the counter claim having been refused to be entertained, the defendant is always at liberty to file his suit based on the cause of action of counter claim. [See : Ramesh Chanel Ardawatiya Vs. Anil Panjwani, (2003) 7 SCC 350]. In the backdrop of the aforesaid legal position, the facts of the case may be seen. In the instant case, the suit has been filed by the petitioner for eviction of the respondent under the provisions of the M.P. Accommodation Control Act, 1961 on the grounds enumerated under Section 12 (1) (a) and 12 (1) (c) of the Act. In the backdrop of the aforesaid legal position, the facts of the case may be seen. In the instant case, the suit has been filed by the petitioner for eviction of the respondent under the provisions of the M.P. Accommodation Control Act, 1961 on the grounds enumerated under Section 12 (1) (a) and 12 (1) (c) of the Act. It is well settled in law that in a suit based on contract of tenancy the question of title cannot be gone into like a regular civil suit based on title and is incidentally decided. In the instant case, the cause of action admittedly has arisen after filing of the written statement. Thus, the counter claim falls within the purview of Order 8 Rule 9 of the Code of Civil Procedure. The issues have already been framed in the civil suit filed by the petitioner and the trial has already commenced. If the counter claim is allowed at this stage, it will have the effect of prolonging the trial. Thus, in view of the law laid down by the Supreme Court in Ramesh Chanel Ardawatiya (supra), the order of the Trial Court cannot be sustained in the eye of law. ( 5. ) FOR the aforementioned reasons, the order dated 12-3-2010 (Annexure P-1) passed by the Trial Court is quashed. In the result, the writ petition is allowed.