Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 599 (PAT)

Rajendra Pd. Yadav v. Sumitra Devi

2012-04-11

SHIVAJI PANDEY

body2012
ORAL ORDER Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The defendant is the petitioner in the present writ petition. The petitioner is challenging the order dated 16.8.2007 passed by the learned Civil Judge 2nd (Senior Division), Lakhisarai in Title Suit No. 11 of 2001 whereby the court below was pleased to reject the petition filed by the petitioner under Order VI, Rule 17 of the Civil Procedure Code seeking amendment of his written statement to incorporate relief in the form of counter claim. 3. It appears from the record that Karu Gope had two sons, namely, Sewak Gope and Narayan Gope. Narayan Gope had four sons, namely, Ram Das Yadav, Ram Swarup Yadav, Bhaghwan Yadav and Shyam Sunder Yadav and Ram Das Yadav had five sons, namely, Rajendra Yadav alias Rajo Yadav, Binod Yadav, Ashok Yadav,Gore Lal Yadav and Murari Yadav alias Mungeri. Sewak Gope had died leaving behind his widow Mungba Devi and three daughters, namely, Sumitra Devi, Akasho Devi and Bhuneshwari Devi. Mungba Devi, wife of Sewak Gope had died in the year 1989. The daughters of Sewak Gope had filed Partition Suit No. 11 of 2001 where all the heirs and successors of Karu Gope were made a party. The daughters of Sewak Gope had claimed 50% share of joint family property as they derived the right, through their father who was son of Karu Gope who had only two sons. 4. The defendants had appeared and filed their written statement. Rajendra Prasad Yadav who is the present petitioner and claimed to be adopted son of Sewak Gope was also impleaded as a defendant in the said suit. He also filed written statement and after some time he field an application under Order 6 Rule 17 of the Civil Procedure Code making a prayer that due to typing error certain facts have been left out in the written statement and made a prayer that he should be allowed to add left out facts through the proposed amendment. He, by the proposed amendment has made a claim that the relief of counter claim of being declared as adopted son of Sewak Gope be added in the written statement. This amendment petition was resisted by the plaintiff. 5. He, by the proposed amendment has made a claim that the relief of counter claim of being declared as adopted son of Sewak Gope be added in the written statement. This amendment petition was resisted by the plaintiff. 5. The plaintiff-respondent filed rejoinder to the amendment petition stating the fact that amendment petition is not maintainable and relief for counter-claim can not be added in the written statement. They have further stated that though in the written statement the petitioner has narrated the story of adoption in the entire body of the written statement and facts which are required to constitute counter-claim is absent in the written statement. The petitioner is not entitled to get any declaration and made a prayer to dismiss the petition. 6. The court below after hearing the parties has rejected the claim of the petitioner vide order dated 16.8.2007 holding that some formalities and conditions for adding relief of counter claim are absent in the written statement and those conditions have not been fulfilled by the defendants-respondents and as such he can not be allowed to make a prayer for addition of relief of counter-claim in the written statement. 7. Learned counsel for the petitioner has submitted that the court below has fallen in error in refusing to allow the amendment petition which is formal in nature and wrongly refused to add the relief of counter-claim in the written statement. He further submits that it is permissible in law to bring the claim of counter-claim by way of amendment in the written statement. Only rider that has been prescribed under Order 8 Rule 6 A of the Code of Civil Procedure that the cause of action for the counter-claim should accrue before the filing of the written statement or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. He further submits that admittedly the cause of action in the present case has happened before filing of the written statement and as such the conditions that have been prescribed under Order 8 Rule 6A of the Code of Civil Procedure are fulfilled and the court below has wrongly refused to allow his amendment petition thereby illegally depriving defendant to add the relief of counter-claim. In support of his contention he has relied on the judgment in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, reported in A.I.R. 2003 SC 2508. 8. Learned counsel for the respondents has vehemently opposed the prayer of the petitioner and has made a submission that there can not be a permission to allow the amendment of the written statement whereby allowing the relief of counter-claim. He has also submitted that the petitioner had filed a Title Partition Suit No. 193 of 1990 claiming the partition of the property and there also he claimed that he was adopted son of Sewak Gope and in that suit the present plaintiffs were not made a party to the suit and later on when they could know about the case they filed an intervention petition which was allowed and affirmed althrough and there they have challenged the claim of the petitioner of being adopted son of Sewak Gope. 9. Learned counsel for the respondents submit that after their appearance they could not appear and ultimately the case was dismissed for default and thereafter the plaintiff respondents have filed the present suit for partition of the suit property. He further submits that as respondent-petitioner has made same claim in the Title Suit No.193 of 1990 and which has been dismissed for default and as such they can not be allowed to make counter claim in the present case as it amounts to revival of the same claim that has already been made in the earlier suit which was dismissed for default and said that it would be barred under Order 9, Rules 8 and 9 of the Code of Civil Procedure. He has further submitted that in the written statement petitioner has not specifically made the claim of the counter-claim in terms of Order 8, Rules 6A and 6B of the Code of civil Procedure and as such only by mere addition of the relief in written statement it can not turn out to be as a counter-claim and for which he was required to make statements in full details in written statement stating that facts are there for counter-claim and only addition of relief in the written statement would not be sufficient in the context of claiming the relief of counter-claim which in fact is not available in the written statement and as such amendment in the relief of counter-claim can not be allowed to be added. In support of contention he has relied on two judgments of the Hon’ble Supreme Court in the case of Bollepanda P. Poonacha and another Vs. K.M. Madapa, reported in A.I.R. 2008 SC 2003 and in the case of Gayathri Womens Welfare Association Vs. Gowramma and Another, reported in 2011(1) BBCJ 429. 10. Learned counsel for the petitioner in his rejoinder has submitted that as the defendants have not filed any counter affidavit nor have brought the written statement before this Court and point that has been taken by them was not argued before the court below and as such they can not be allowed to raise aforesaid points for the first time in this case before this Court as those are based on mixed question of fact and law. 11. Having considered the rival contention of the parties it will be desirable to examine the parameter and scope of Order 8 Rule 6A of the Code of Civil Procedure and the judgments of the Hon’ble Supreme Court. 11. Having considered the rival contention of the parties it will be desirable to examine the parameter and scope of Order 8 Rule 6A of the Code of Civil Procedure and the judgments of the Hon’ble Supreme Court. In that context Order 8 Rule 6A of the Code of Civil Procedure are as follows: “Order 8, Rule 6-A. Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.” 12. On close analysis of provisions of Order 8 Rule 6A of the Code of Civil Procedure it is apparent that defendant in a suit not only can challenge the claim of plaintiff but has a additional right to make a prayer by way of counter-claim against the plaintiff for a cause of action which accrued to defendant either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Sub-section (4) of Order 8 Rule 6A of the Code of Civil Procedure states that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaint. Sub-section (4) of Order 8 Rule 6A of the Code of Civil Procedure states that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaint. Rule 6B of the Code of Civil Procedure states that where any defendant seeks to rely upon any ground as supporting a right of counter-claim he shall, in his written statement state specifically that he does so by way of counter-claim. So on reading of Order 8, Rule 6B of the Code of Civil Procedure that he will have to state in the written statement specifically about giving narration of fact making a right of counter-claim and that portion will be treated as a plaint for the purposes of counter-claim and the plaintiff will have a right to file suitable written statement in contra to the counter-claim. In order to understand the parameter of aforesaid provisions it will be very apt to consider the judgment in the case of Ramesh Chand Ardawatiya (supra) where in paragraph 28 of the judgment the the Hon’ble Supreme Court has held as follows: “28. 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 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. 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. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of R. 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of 'subsequent pleading' as there is no 'previous pleading' on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim.” 13. From paragraph 28 of the aforesaid judgment it is apparent that firstly the written statement filed under R.1 may itself contain a counter-claim. From paragraph 28 of the aforesaid judgment it is apparent that firstly the written statement filed under R.1 may itself contain a counter-claim. 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. Learned counsel for the petitioner submits that the Hon’ble Supreme Court has given liberty to the defendant to make a counter-claim even by way of amendment of the written statement but subject to leave of the court and has submitted that the court below has wrongly refused to consider the case of the petitioner for addition of relief of counter-claim in written statement and deprived him from the right of counter-claim. 14. In the case of Bollepanda P. Poonacha (supra) the Hon’ble Supreme Court has held that if the amendment petition for counter-claim has been filed at a belated stage the same can be refused. In that case the court has specifically refused the counter-claim on the ground that the cause of action has arose after filing of the written statement and that was ground for refusal for adding the counter-claim in the written statement. In this judgment the Hon’ble Supreme Court has taken cognizance of other judgments of the Hon’ble Supreme Court where it has been held that the defendant has a right to add relief of counter-claim by way of amendment petition. 15. In the case of Gayathri Womes Welfare Association (supra) the Hon’ble Supreme Court has reiterated the same view as of Ramesh Chand Ardawatiya (supra) and approved that relief of counter-claim can be added in the written statement by way of an amendment petition. 16. On the consideration of the aforesaid judgments now, it is settled law that the relief of counter-claim can be added in written statement by way of its amendment. 17. 16. On the consideration of the aforesaid judgments now, it is settled law that the relief of counter-claim can be added in written statement by way of its amendment. 17. Learned counsel for the respondents has pressed into service of Order 8 Rule 6A (4) of the Civil Procedure Code where it has been specifically mentioned that counter-claim should be treated as a plaint and governed by the rules applicable to plaints and Order 8 Rule 6B of the Code of Civil Procedure provides that in the written statement the defendant must state specifically that he does so by way of counter-claim and claimed that there is no such averment in consonance with Order 8 Rule 6B of the Civil Procedure Code in the written statement of the petitioner and as such his prayer for counter-claim can not be allowed. As written statement is not before this Court and as such it is very difficult to give the answer that has been raised by the petitioner. So far applicability of Order 9 Rules 8 and 9 of the Code of Civil Procedure is concerned as it is a partition suit where the parties can be transposed either the defendant as a plaintiff or plaintiff as a defendant and so much so the plaint that has been filed in the earlier suit is not before this Court to examine the fact as to whether the petitioner has made any claim with regard to adopted of son of Sewak Gope. So much so that claim of partition of property is a recurring right and as such provisions of Order 9 Rules 8 and 9 of the Code of Civil Procedure may not apply. 18. In this view of the matter, the impugned order dated 16.8.2007 is set aside and the court below is directed to pass a fresh order where the respondents will have a liberty to raise all the points in accordance with law and the court below will pass an order considering the law that has been decided as aforesaid. 19. This writ petition is allowed with the aforesaid liberty.