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2014 DIGILAW 1233 (SC)

Muni Singh v. Laxmi Rai

2014-11-12

J.CHELAMESWAR, S.A.BOBDE

body2014
ORDER Leave granted. Aggrieved by judgment and order dated 24.1.2012 passed by the High Court of Patna in C.W.J. Case No. 12465 of 2010, the respondents therein preferred this appeal. 2. The appellants herein are the plaintiffs in Title suit No. 150 of 2001 on the file of the Sub-Judge, Gopalganj, Bihar. The suit is for partition of the property of a joint family consisting of the plaintiffs and the defendants. 3. The admitted facts are: the suit was filed on 18.4.2001. The defendants, i.e., the respondents herein filed a written statement on 5.10.2001. The suit went for trial. The evidence of the appellant's side was closed on 26.8.2009. Evidence of the respondent's side was closed on 26.10.2009. Thereafter, the suit was posted for arguments to be heard on 3.12.2009. On 14.12.2009, it appears the defendant filed an application with the prayer as follows :- "Therefore, it is prayed that the issue of partial partition may kindly be framed among the issues framed in view to the facts mentioned above." 4. Subsequently, the respondents filed another application on 8.3.2010 with the prayer to amend the written statement thereby setting up a counter claim. The prayer in the said application is as follows:- "(1)...decree may kindly be passed by the Court with regard to 1/3 share in counter claim as per Schedule No. 6 of the written statement and a separate possession be granted after partitioning the 1/3 share of the defendants through officials of the Court. (2) after Schedule No. 5 of the written statement the Schedule No. 6 be inserted as hereunder." 5. The said application was dismissed by the trial Court by an order dated 14.5.2010. Aggrieved by the same, the respondents carried the matter to the High Court invoking the jurisdiction under Article 227 of the Constitution of India. By the impugned order, the High Court allowed the revision setting aside the order of the trial Court dated 14.5.2010 consequently allowing an application dated 8.3.2010 of the respondents herein. Hence the appeal. 6. It is submitted by the learned counsel for the appellants that under Order VIII Rule 6-A *[1] of the Code of Civil Procedure, 1908, a counter claim could be made before the defendant has delivered his evidence or before the time limited for delivering his evidence has expired. Hence the appeal. 6. It is submitted by the learned counsel for the appellants that under Order VIII Rule 6-A *[1] of the Code of Civil Procedure, 1908, a counter claim could be made before the defendant has delivered his evidence or before the time limited for delivering his evidence has expired. A belated application seeking to introduce a counter claim by the defendant, after the trial of the entire suit is concluded, is impermissible and the High Court grossly erred in allowing the application for counter claim. *[1 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 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 the plaints.] 7. On the other hand, learned counsel for the respondents argued that under Order VIII Rule 9, the trial Court has a discretion to allow the counter claim at any stage. It is further submitted that in the case on hand, the issues came to be settled only on 26.10.2009. Therefore, the application dated 8.3.2010 seeking an amendment of the written statement with the prayer of counter claim cannot be said to be a belated application. The High Court was justified in exercising its discretion in favour of the respondents herein. 8. At the outset, we must deal with the question as to the date on which the issues in the suit have been settled. The High Court was justified in exercising its discretion in favour of the respondents herein. 8. At the outset, we must deal with the question as to the date on which the issues in the suit have been settled. There is an order of the trial Court dated 3.12.2005, the relevant portion of which reads as follows :- "Documents were filed on behalf of plaintiff along with the list. Defendants filed application seeking time. Counsel for the plaintiffs appeared in the court and requested for hearing. Heard. Issues have been framed. Both parties to file their oral and documentary evidence on 12.12.2005." 9. However, there is another order dated 26.10.2009. The relevant portion of which reads as follows :- "It has also come to light upon perusal of the case records that trial of this suit commenced on 03.12.05 after framing of the issues. But the issues so framed are not available on record. The issues should be available on record during the arguments. In such circumstances the issues were framed today." 10. It is the case of the respondents that the order dated 26.10.2009 demonstrates that the issues were framed only on 26.10.2009. On the other hand, it is the case of the appellants that the issues had in fact been settled as long back as on 3.12.2005. It is only after the settlement of the issues, the trial of the case commenced and both the parties adduced evidence. On 26.10.2009, the Court only noticed that the issues framed earlier are missing from the record and, therefore, it choose to reframe the issue for the purpose of the record. 11. We accept the submission by the learned counsel for the appellants because the order dated 3.12.2005 clearly says that the issues had been framed whereas the order dated 26.10.2009 only records that the trial of the suit commenced after framing of the issues but the issues so framed were not available on record. Apart from that, if really the issues were not framed on 3.12.2005, the parties could not have really adduced evidence in the suit. At any rate, the respondents should have raised objections as to the conduct of the trial without framing issues. Admittedly, no objection was even raised by the respondents. Therefore, we are not able to agree with the submission that the issues were framed only on 26.10.2009. At any rate, the respondents should have raised objections as to the conduct of the trial without framing issues. Admittedly, no objection was even raised by the respondents. Therefore, we are not able to agree with the submission that the issues were framed only on 26.10.2009. We are of the opinion that the issues were framed on 3.12.2005. 12. Apart from that, the discretion of the Court under Order VIII Rule 9 CPC to accept the subsequent pleadings is a discretion which is required to be exercised reasonably as pointed out by this Court in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003(7) SCC 350 "26. .... The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time. 28. Looking to the scheme of Order 8 as amended by Act 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 Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 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 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 vesting in the court, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8 Rule 9 CPC 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 would 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 reopening 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." 13. This Court in Rohit Singh and Others v. State of Bihar(Now State of Jharkhand) and Others, 2006 (12) SCC 734 in paragraph 18 observed as under :- "....A counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that the counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so-called coutnerclaim of Defendants 3 to 17 by the trial Court, after the framing of issues for trail, was clearly illegal and without jurisdiction." 14. In the light of the law laid down by this Court in the above-mentioned two judgments, we are of the opinion that the High Court grossly erred in allowing the revision and setting aside the order of trial Court rejecting the application for amending the written statement by adding a counter claim after the conclusion of the trial. We accordingly set aside the impugned order and confirm the order passed by the trial Court rejecting the application of the respondents. The appeal is allowed.