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2011 DIGILAW 532 (ORI)

ASHWINI KUMAR NAIK v. GOBARDHAN NAIK

2011-10-21

B.K.NAYAK

body2011
JUDGMENT B.K.NAYAK, J. In this writ petition the petitioner, who is the plaintiff in Civil Suit No.85 of 2004 of the court of learned Civil Judge (Senior Division), Sundargarh, has assailed the order dated 24.1.2011 passed by the said court allowing amendment of the written statement of the opposite party-defendant by way of incorporation of counter claim. 2. The suit was filed by the petitioner seeking relief of declaration that the suit property was his absolute property. The defendant-opposite party is none other than the father of the petitioner. The plaintiff’s claim was that though defendant purchased the suit land by his own salary income, a house was constructed thereon by the joint efforts and finance of both the parties. The loan incurred by the defendant for the purpose of construction of the house could not be repaid by him, but it was ultimately repaid by the plaintiff for which the property was mortgaged with him by the defendant. Since for the development of the property and construction of the house, the plaintiff has borne the entire expenses it has become his absolute property. As it appears, the suit has been decreed on compromise in favour of the plaintiff-petitioner, but the opposite party filed RFA No.43 of 2007 in this Court which was allowed and the compromise decree was set aside and the matter was remanded to the trial court for fresh disposal. Thereafter, the opposite party filed petition under Order 6 Rule 17 of the C.P.C. with a prayer to incorporate a counter claim in the written statement. The counter claim mainly relates to additional prayer for declaration of defendant’s right, title and interest over the suit land and for recovery of possession and for recovery of the rent realised by the plaintiff from the suit house pursuant to the compromise decree. The amendment was allowed by the impugned order subject to payment of cost of Rs.100/-by the opposite parties to the plaintiff-petitioner. 3. The only contention raised by the learned counsel for the petitioner is that the counter claim was not maintainable after settlement of issues. For this, he relied on the decisions reported in AIR 2003 SC 2508; Ramesh Chand Ardawatiya v. Anil Panjwani and AIR 2011 SC 785 ; Gayathri Women’s Welfare Association v. Gowramma and another. 3. The only contention raised by the learned counsel for the petitioner is that the counter claim was not maintainable after settlement of issues. For this, he relied on the decisions reported in AIR 2003 SC 2508; Ramesh Chand Ardawatiya v. Anil Panjwani and AIR 2011 SC 785 ; Gayathri Women’s Welfare Association v. Gowramma and another. Learned counsel for the opposite party contends that those decisions have no application to the facts and circumstances of the present case. 4. In the case of Ramesh Chand Ardawatiya (supra), the apex Court held that 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 set down for trial, and more so when the trial has already commenced, with the following observations: “Looking to the scheme of O.VIII as amended by Act No.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 R.1 may itself contain a counter claim which in the light of R.1 read with R.6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.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 R.9. In the latter two cases the counter-claim though referable to R.6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under O.VI, R.17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.VIII, R.9 of the C.P.C. if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counterclaim 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. The purpose of the provision enabling filing of a counterclaim 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. If the consequence of permitting a counterclaim either by way of amendment or by way of subsequent pleading could be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. 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 set down for trial, and more so when the trial has already commenced. xxx” The factual matrix of the aforesaid case reveals that the suit therein had a chequered history. After the issues were settled, evidence was closed, arguments were heard and the judgment was reserved. In the meantime, the defendant made an application under Order 18, Rule 17 of the C.P.C. praying permission for cross-examining some of the plaintiff’s witnesses, which could not be done earlier due to pendency of a civil revision at his instance that was dismissed. After the suit was posted for judgment, the said application was allowed subject to payment of cost. At this stage, defendant again filed an application to place on record a written statement under Order-VIII Rule 6-A of the C.P.C. by way of counter claim. Since the defendant had already been set ex-parte, the trial court refused to entertain the written statement containing the counter claim. 5. At this stage, defendant again filed an application to place on record a written statement under Order-VIII Rule 6-A of the C.P.C. by way of counter claim. Since the defendant had already been set ex-parte, the trial court refused to entertain the written statement containing the counter claim. 5. Quoting the aforesaid observations made in Ramesh Chand Ardawatiya (supra), the Supreme Court in the case of Gayathri Women’s Welfare Association (supra) held that the aforesaid observation made it clear that 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 evidence taken. Here again the case before the apex Court had a chequered career. The suit therein after evidence had been decreed which was challenged in a Regular First Appeal before the High Court. The High Court allowed the appeal and remanded the matter to the trial court for fresh disposal. After remand, the respondent sought to amend their written statement for incorporating counter claim. The amendment incorporating counter claim was allowed and the plaintiffs filed written statement to the counter claim on the basis of which additional issues were framed. But, again the trial court decreed the suit of the plaintiffs and dismissed the counter claim of the defendant. Aggrieved by the dismissal of the counter claim, the defendant again filed RFA No.43 of 2007 before the High Court. During the pendency of such appeal, the defendant filed an application before the High Court seeking for amendment of the written statement to include an additional prayer in the counter claim. The High Court allowed the amendment of the counter claim and again remanded the matter directing the trial court to dispose of the counter claim of the defendant afresh. This order of the High Court was challenged before the apex Court and relying upon the decision in the case of Ramesh Chand Ardawatiya (supra), the apex Court allowed the appeal holding that counter claim at such stage was not entertainable. 6. This order of the High Court was challenged before the apex Court and relying upon the decision in the case of Ramesh Chand Ardawatiya (supra), the apex Court allowed the appeal holding that counter claim at such stage was not entertainable. 6. The following observations in the aforesaid decisions are relevant: “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. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading could be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim”. Therefore, the Court held that generally speaking the counter claim not contained in the original written statement may be refused to be taken on record, especially when the issues were framed and more so when the trial was commenced. This proposition as it appears is not absolute and without exception. 7. In the instant case, it is not in dispute that the suit between the parties was decreed on compromise without trial, but the compromise decree was set aside in appeal at the instance of the defendant-opposite party and the matter was remanded to the trial court for hearing and disposal. Whereafter, the opposite party sought to amend his written statement by incorporating the counter claim seeking relief of declaration of right, title and interest and recovery of possession, as because basing on the compromise decree passed earlier the suit land had been mutated in the name of the plaintiff-petitioner. In the circumstances, in my considered opinion, the general proposition laid down in the aforesaid decisions of the apex Court will have no application to the instant case. Permitting the counter claim of the opposite party by way of amendment of the written statement will not have the effect of prolongation of the trial or complicating the otherwise smooth flow of proceedings forcing a retreat on the steps already taken by the court. Permitting the counter claim of the opposite party by way of amendment of the written statement will not have the effect of prolongation of the trial or complicating the otherwise smooth flow of proceedings forcing a retreat on the steps already taken by the court. On the contrary, it would help avoid multiplicity of judicial proceedings, facilitating all disputes between the parties being decided finally. 8. In the aforesaid circumstances, I find no illegality in the order of the trial court allowing amendment of written statement introducing the counter claim. The writ petition is, therefore, dismissed. No costs. Writ petition dismissed.