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Rajasthan High Court · body

2013 DIGILAW 234 (RAJ)

Hadman Ram v. Ram Chandra

2013-01-29

ARUN BHANSALI

body2013
JUDGMENT 1. - These writ petitions have been filed by the petitioner plaintiff feeling aggrieved by the order dated 13.03.2012 passed by the learned trial court, whereby, the counter claim filed by the respondents was taken on record. 2. The brief facts of the cases are that the petitioner filed suit for permanent injunction against the respondents along with application under Order 39, Rule 1 and 2 CPC. On service of summons and notices, the defendants filed written statement to the plaint and reply to the temporary injunction application on 02.11.2011. Thereafter by filing applications dated 27.02.2012 the defendants sought permission to file counter claim in the suit as well as in the temporary injunction application. The said applications were opposed by the petitioner on the ground the same were not maintainable. However, the learned trial court allowed the said applications for taking the counter claim on record and feeling aggrieved by the order passed in the suit as well as in the temporary injunction application, the two separate writ petitions have been filed by the petitioner. 3. I have heard learned counsel for the parties and perused the material placed on record. 4. It was submitted by learned counsel for the petitioner that the counter claim cannot be filed separately, so also, after filing of the written statement and, therefore, the learned trial court was not justified in taking the said counter claim on record. It was submitted that in view of the express language of Order 8, Rule 6A CPC, it is imperative for every defendant to file counter claim along with the written statement. Any other mode is not contemplated by Civil Procedure Code. 5. Reliance in this regard was placed on the judgment of Hon'ble Apex Court in the case of Bollepanda P. Poonacha & Anr. v. K.M. Madapa, reported at AIR 2008 SCW 2895 . 6. On the other hand, the learned counsel for the respondents submitted that the written statement was filed on 02.11.2011 and cause of action arose subsequent to filing of the written statement and, as such, the defendants were entitled to apply for taking their counter claim on record. v. K.M. Madapa, reported at AIR 2008 SCW 2895 . 6. On the other hand, the learned counsel for the respondents submitted that the written statement was filed on 02.11.2011 and cause of action arose subsequent to filing of the written statement and, as such, the defendants were entitled to apply for taking their counter claim on record. The taking on record of counter claim, which would avoid multiplicity of litigation and would further facilitate resolution of dispute as it relates to the same subject matter, the order impugned cannot be said to be causing any harm to the petitioner and, therefore, the writ petition deserves to be dismissed. 7. I have considered the rival submissions made at the Bar. 8. The question raised in the present writ petition is as to whether a counter claim is permissible to be filed after filing of a written statement. The provisions of Order 8, Rule 6A CPC which deals with filing of the counter claim by the defendants reads as under:- "6A. 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 counterclaim 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." (emphasis supplied) 9. A bare reading of the said provision reveals that the counter claim can be filed by the defendants regarding 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. The said provision clearly specifies the point of time of accruing of the cause of action and filing of the counter claim i.e. the cause of action must have arisen before filing of the suit or after filing of the suit, but before the defendant has delivered his defence. The said provision clearly specifies the point of time of accruing of the cause of action and filing of the counter claim i.e. the cause of action must have arisen before filing of the suit or after filing of the suit, but before the defendant has delivered his defence. The Hon'ble Supreme Court in the case of Bollepanda P. Poonacha (supra) has dealt with the above issue and has held as under:- "10. The provision of Order 8, Rule 6A must be considered having regard to the aforementioned provisions. A right to file counter claim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. Respondent in his application for amendment of written statement categorically raised the plea that the appellants had trespassed on the lands, in question, in the summer of 1998. Cause of action for filing the counter claim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable." 10. In the case before the Hon'ble Supreme Court, the respondents had filed written statement on 21.03.1997 and thereafter application for leave to file counter claim was filed on or about 04.01.2006 on the premise that the plaintiffs had dispossessed the respondents in the year 1998. In that view of the matter, the Hon'ble Supreme Court came to the conclusion that the application was not maintainable. In the same judgment the Hon'ble Supreme Court further held that as the Parliament has placed an embargo by inserting Order 8, Rule 6A of the Code of Civil Procedure and while there exists a statutory bar the Courts' jurisdiction cannot be exercised. 11. In the present case, admittedly the written statement and reply to the temporary injunction application were filed on 02.11.2011 and the application was moved subsequent to filing of the written statement with allegation that the cause of action has arisen subsequent to filing of the written statement rather a plea was taken that on account of mistake the counter claim could not be filed. In view of the specific provision contained in Order 8, Rule 6A CPC and the pronouncement of the Hon'ble Supreme Court as noticed above the order impugned passed by the learned trial court cannot be sustained. 12. In view of the above discussions , the writ petition filed by the petitioner is allowed. The order impugned dated 13.03.2012 passed by the learned trial court is set aside. However, it would be open for the respondents to file a separate suit for the reliefs claimed in the counter claim, if advised and permissible in law. No costs.Petition allowed. *******