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2014 DIGILAW 442 (GAU)

MOHIT LAL ROY v. SARADAMONI STORES

2014-04-11

N.CHAUDHURY

body2014
JUDGMENT AND ORDER (CAV) Two sets of tenants in adjacent to two shop rooms at the ground floor of a R.C.C. building at Central Road, Silchar, filed two similar suits separately against the same set of defendants with identical pleadings praying for declaration that they are monthly tenants under defendant No.3 of the both the suits, namely, Sri Debasish Roy, who derived title from defendants No. 1 and 2 and also for consequential declaration that they are not liable to be removed from the tenanted premises otherwise then in due course of law. 2] The suit filed by two plaintiffs, namely, Sri Mohit Lal Roy and Sri Sushil Kumar Roy, was registered as T.S. No. 134/2010 whereas the second suit, instituted by Sri Rupak Paul, was registered as T.S. No. 133/2010 in the court of learned Munsiff No. 1 at Silchar. The common defendants No. 1 and 2, in both the suits, filed one set of written statement separately in each of the suits while defendant No. 3, the holder of derivative title, filed separate written statement of his own in the two suits. Thereupon issues were framed and the case was set for hearing stage. 3] At this stage, an application with identical averments was filed in each of the two suits by the contesting defendant No. 3 stating that the defendant No. 3 ‘is desirous to file additional written statement with counter-claim for substantiating some pertinent facts which are necessary for the ends of justice’. With this statement without any further elaboration or statement of material fact as to what pertinent facts were sought to be brought on record, the defendant No. 3 made prayer for additional written statement with counter claim. This application was opposed by the respective plaintiffs in both the suits separately, inter alia, on the grounds that there was neither any provision of law to file additional written statement as well as counter-claim at the whim of the party and that the application was not maintainable. The objection taken by the plaintiffs in these two suits was that once written statement was filed, the defendant had no right to file a counter claim at belated stage. The learned Court after hearing parties allowed the application on 25.04.2013 in T.S. No. 134/2010 and on 05/03.2013 in T.S. No. 133/2010. The objection taken by the plaintiffs in these two suits was that once written statement was filed, the defendant had no right to file a counter claim at belated stage. The learned Court after hearing parties allowed the application on 25.04.2013 in T.S. No. 134/2010 and on 05/03.2013 in T.S. No. 133/2010. These two orders, namely, order dated 25.04.2013, passed in T.S. No. 134/2010 and order dated 05.03.2013, passed in T.S. No. 133/2010 have been separately challenged by two revision petitions, namely, CRP(I/O) No. 57/2013 and CRP(I/O) No. 58/2013 respectively by the plaintiffs in this court. Since the subject matter and the point, urged in both the petitions, are identical and they are against the same defendants, both the petitions are taken together for hearing. 4] I have heard Mr. BK Purkayastha and Ms. UK Purkayastha in both the revision petitions on behalf of petitioners whereas Mr. AC Sarma, assisted by Mr. B Haldar and Mr. B Purkayastha have been heard on behalf of the opposite parties in both the revision petitions. 5] The argument of the learned counsel for the petitioners, in both the cases, are as follows: (i) The learned court should not have allowed the application for filing additional written statement cum counter-claim after framing of issues as the same is against the provision of Order VIII Rule 6A of the Code of Civil Procedure. (ii) That the application praying for leave to file additional written statement cum counter-claim not having disclosed the reason for such application and the facts sought to be incorporated including the cause of action the learned court should not have allowed the application merely at the ipsi dixit of the defendant No. 3 (opposite party No. 3 herein). The learned counsel, Mr. B K Purkayastha, has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, reported in (2003) 7 SCC 350 . Relying on paragraph 28 of the said judgment, the learned counsel for the petitioners argued 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 begun. 6] Per contra, Mr. 6] Per contra, Mr. AC Sarma submits that the application has been filed under Order VIII Rule 9 of the Code of Civil Procedure which empowers a court to grant leave to the parties for filing additional pleadings. Drawing attention of the court to the recital of Order VIII Rule 9 of the Code of Civil Procedure, the learned counsel argues that no pleading subsequent to written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by leave of the court. The argument of the learned counsel for the opposite parties is that in appropriate case court can definitely exercise power under this rule to grant leave for filing subsequent pleadings. Normally after filing of the written statement, only pleading, which is permissible to be filed, is defence to claim set-off or counter-claim, raised by the defendants and such right is recognized under Order VIII Rule 6A(3) of the Code of Civil Procedure. But such prohibition is only subject to leave granted by the court. This being the legal position, there is no jurisdictional error once the learned court permits a defendant to file subsequent pleading along with counter claim. The learned counsel, apart from relying on the judgment of Ramesh Chand Ardawatiya (Supra), has also pressed into service the judgment of the Hon’ble Kerala High Court in the case of Kerala Nadvathur Mujahideen Vs. Hussain Madvoor, reported in 2007 (1) KLT 92 and the judgment of the Hon’ble Bombay High Court in the case of Sergi Transformers Explosion Vs. Ctr Manufacturing Industries. In all the aforesaid judgments the law discussed is that court has power to grant leave to a defendant to file counter-claim after filing of the written statement in appropriate case provided the cause of action of the counter-claim has arisen before or after filing of the suit but before delivering defence or time limited for delivering defence of the defendant. The learned counsel for the opposite parties argues that merely because application for additional written statement cum counter-claim was filed subsequent to framing of issues the same does not become maintainable and the court has power to allow filing of additional written statement cum counter-claim even after framing of issues. The learned counsel for the opposite parties argues that merely because application for additional written statement cum counter-claim was filed subsequent to framing of issues the same does not become maintainable and the court has power to allow filing of additional written statement cum counter-claim even after framing of issues. In the instant case, court, having jurisdiction to pass such order, has passed the order granting leave to the defendant No. 3 and accordingly, after passing of the order granting such leave, the said defendant subsequently filed additional written statement cum counter-claim. With these submissions, the learned counsel would argue that the revision petition is devoid of any merit and is consequently liable to be dismissed. 7] Coming to the first argument, made by the learned counsel for the petitioners that there is no scope for allowing defendant to file additional written statement and counter-claim after framing of issues, the relevant provisions to be considered are the provisions of Order VIII Rule 6 A(1) and Order VIII Rule 9 of the Code of Civil Procedure. The Order VIII Rule 6A provides that a defendant in suit may in addition to his right of pleading a set-off under Rule 6 set up counter-claim against the plaintiff. But such right or counter-claim is to be 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 further rider attached to this provision is that the counter-claim should not exceed the pecuniary limit of the jurisdiction of the court. This rule has conferred a statutory right on the defendant to raise counter-claim against the plaintiff subject to two conditions. First, the cause of action of the counter-claim must have arisen before or after filing of the suit but before the date fixed for delivering his defence or before any defence is so delivered by the defendant. Secondly, no such counter-claim can be filed if the value of it exceeds the limit of pecuniary jurisdiction of the court. First, the cause of action of the counter-claim must have arisen before or after filing of the suit but before the date fixed for delivering his defence or before any defence is so delivered by the defendant. Secondly, no such counter-claim can be filed if the value of it exceeds the limit of pecuniary jurisdiction of the court. The upper time limit of the date for delivering defence is necessary because in a given case, as in the case of Ramesh Chand Ardawatiya (Supra), if the defendant really does not file a written statement and case proceeds ex-parte against him then he shall not be at liberty to file counter-claim after time permitted by the court for filing his written statement had expired. 8] In Ramesh Chand Ardawatiya (Supra), the suit proceeded ex-parte against the defendant after several adjournments being granted to him for filing written statement and an application, filed for setting aside the order of ex-parte proceeding, was also rejected by the learned Trial court. A revision brought there-against had also failed. At that stage, the defendant filed written statement and counter-claim with a prayer for taking them in records which was refused by the learned Trial court and the same decision along with the ex-parte judgment and decree passed thereafter was upheld by the Hon’ble Rajasthan High Court in regular first appeal preferred against the decree. On being taken to the Hon’ble Supreme Court by way of special leave, the Hon’ble Supreme Court did not find any error in refusal of the learned Trial court to take belated written statement and counter-claim on record. The Hon’ble Supreme Court was of the view that the learned Trial court rightly did not walk into the trap laid by the defendant for obliquely getting the proceeding re-opened and for converting an ex-parte proceeding into a contested one after having availed umpteen numbers of adjournments with a view to delaying disposal of the suit. The Hon’ble Supreme Court was of the view that the learned Trial court rightly did not walk into the trap laid by the defendant for obliquely getting the proceeding re-opened and for converting an ex-parte proceeding into a contested one after having availed umpteen numbers of adjournments with a view to delaying disposal of the suit. But even in that judgment the Hon’ble Supreme Court has observed that a counter-claim can be filed subsequent to the date of delivering defence by the defendant in two ways, namely, by way of amendment under Order VI Rule 17 of the Code of Civil Procedure in appropriate case and also under VIII Rule 9 by way of subsequent pleading, although the normal way for filing counter-claim is that it should find place in the written statement itself. The observation made by the Hon’ble Supreme Court in paragraph 28 of the case of Ramesh Chand Ardawatiya (Supra) which has been relied on by the learned counsel for the petitioners is indicative of a procedure of filing counter-claim under Order VIII Rule 9 of the Code of Civil Procedure. Although subsequently as a matter general rule, filing of counter-claim after framing of issues has been deprecated. The first submission of the learned counsel for the petitioner, therefore, that all doors, for filing counter-claim after filing of the written statement are closed, cannot be accepted. Neither Order VIII Rule 6 A(1) nor Order VIII Rule 9 strictly prohibits filing of counter-claim after filing of written statement as a matter of inviolable rule. This came up for consideration in the case of Mahendra Kumar Vs. State of M.P., reported in 1987 (3) SCC 265 and Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi, reported in 2002 (3) SCC 676 wherein the Hon’ble Supreme Court held that it is permissible to prefer a counter-claim even subsequent to file of written statement in appropriate case.. 9] The second submission of the learned counsel for the petitioners was that in the case in hand, the learned court committed error in permitting filing of additional written statement cum counter-claim when defendant did not disclose the material facts warranting such filing and the details in regard to cause of action of the written statement. 9] The second submission of the learned counsel for the petitioners was that in the case in hand, the learned court committed error in permitting filing of additional written statement cum counter-claim when defendant did not disclose the material facts warranting such filing and the details in regard to cause of action of the written statement. As discussed above, one of the two limitations for filing counter-claim by the defendant is that cause of action for such counter-claim must have arisen before or after filing of the suit but in no case it should be after delivering defence by the defendant. The emphasis is on the date of cause of action. This being a mandatory condition precedent laid down under Order VIII Rule 6A(1) of the Code of Civil Procedure itself unless the application filed by the defendant discloses the date of cause of action of the proposed counter-claim or unless the proposed counter-claim itself is not presented to enable the learned court to see as to whether the alleged cause of action satisfies this pre-condition, it would not be possible on the part of the learned court to come to a finding that the counter-claim is entertainable in terms of first rider laid down by Order VIII Rule 6A(1). The conditions precedent laid under Order VIII Rule 6A of the Code of Civil Procedure are not only limitations meant for the defendant but they are also the exigencies conferring jurisdiction on the learned court to entertain a counter-claim. 10] Exercise of jurisdiction can be held to be void only if it is passed first, after due application of mind; secondly, on objective satisfaction as to the mischief for which jurisdiction has been conferred by the state on the court and thirdly after having scrupulously examined that the pre-condition, if any, has been satisfied. In so doing the learned court should also be vigilant to see that none of the prohibitions prescribed under statute is violated. In the present case the defendant has miserably failed to disclose any reason whatsoever as to the necessity for filing the additional written statement and the cause of action of the counter-claim. As on the date of passing the impugned order, the learned Trial court remained at dark as to nature and character of the proposed counter-claim or additional written statement and also the date of accrual of cause of action for such counter-claim. As on the date of passing the impugned order, the learned Trial court remained at dark as to nature and character of the proposed counter-claim or additional written statement and also the date of accrual of cause of action for such counter-claim. In that view of the matter the learned court could not satisfy itself as to whether the cause of action of the written statement had arisen prior to delivering of defence by the defendant in the suit. The exercise of power in entertaining counter-claim from that stand point, therefore, was not made in due exercise of jurisdiction. Looking from the other angle, namely, that the court has power to grant leave for filing additional written statement is also subject to fair exercise of jurisdiction. The Code of Civil Procedure has conferred jurisdiction on a court to grant leave for filing subsequent pleading in its discretion. Once a discretion has been granted to court, it is understood that such discretion has to be exercised with adequate care and caution to see as to whether such exercise of discretion does not impinge any provision of law and that it does not occasion any miscarriage of justice to either side. The exigency, as to what would follow if the discretion is not exercised, may also be a relevant consideration to decide necessity for such exercise. If, in the given case, it appears that a party becomes un-situated or is left without any remedy, in that event the court is duty bound to exercise its discretionary power. In the case in hand, the defendant expressed his mere desire for filing additional written statement and counter-claim without pleading or disclosing the underlying reason for so doing. At the first blush, such an application could have been perceived to be a design to delay disposal of suit. Till the impugned order was passed the learned court did not know as to what additional written statement and/or counter-claim was forthcoming. The learned court was not aware as to whether refusal to grant leave would result any miscarriage of justice and as to whether the defendant would be left without any remedy thereby. None of these relevant considerations appear to have arisen before the learned court when the impugned orders were passed. Such exercise of discretion cannot be encouraged. The learned court was not aware as to whether refusal to grant leave would result any miscarriage of justice and as to whether the defendant would be left without any remedy thereby. None of these relevant considerations appear to have arisen before the learned court when the impugned orders were passed. Such exercise of discretion cannot be encouraged. On being pointedly asked as to what counter-claim the defendant No. 3 was desirous to file, the learned counsel for the opposite party replied that the defendant No. 3 wanted to institute a claim for eviction of the plaintiff/plaintiffs under Section 5 of Assam Urban Areas Rent Control Act, so as to avoid multiplicity of proceeding. The reply, given by the learned counsel itself, is suggestive that the refusal to permit subsequent pleading including counter-claim would not have left the defendant without any remedy and as such question of prejudice or miscarriage of justice does not arise. Moreover, the defendant shall be always at liberty to institute an appropriate proceeding praying for eviction of the tenant under Section 5 of the Assam Urban Areas Rent Control Act. 11] The second submission of the learned counsel for the petitioners, therefore, has force. The impugned orders permitting filing of written statement on an application without disclosing the reason for subsequent pleading is vitiated by erroneous exercise of jurisdiction and accordingly the same are set aside. 12] The revision petitions are allowed. 13] No order as to cost.