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2014 DIGILAW 789 (CAL)

Sahadeb Ghosh v. Sucheta Basu

2014-08-19

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. 1. The petitioning plaintiff asserts that in view of Order 8, Rule 6A of the Code of Civil Procedure, 1908 a counter-claim may not be filed by way of amendment of the written statement after the written statement has already been delivered by the concerned defendant. 2. The application for amendment of the written statement by incorporating a counter-claim was filed about a month after the written statement was lodged. The primary objection taken by the plaintiff, as evident from the written objection, was that a counter-claim could not be incorporated after the written statement had already been filed. 3. The trial court considered the propriety of the counter-claim and allowed the same without referring to the plaintiff's objection that a counter-claim could not be received after a written statement had already been filed. 4. In support of the petitioner's contention, a judgment reported at 2011 (5) CHN 115 (Shyamal Kumar Das v. Sanjoy Chowdhury) is placed. The judgment noticed several precedents of the Supreme Court, including one reported at (2003) 7 SCC 350 . The order impugned in Shyamal Kumar Das was the rejection of an application for reconsidering an order dismissing a prayer for a counter-claim to be brought on record. In the context of the order impugned, this court had the occasion to discuss the extent of latitude available to the trial court in receiving a counter-claim. The court referred to the Supreme Court judgment noted above and recognised that a counter-claim could be made along with a written statement or by seeking amendment of the written statement or under Order 8, Rule 9 of the Code. 5. Order 8, Rule 6A of the Code permits a defendant to set up by way of a counter-claim, "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 claim for damages or no ... ." The proviso to the Rule instructs that a counter-claim should not be such that would exceed the pecuniary jurisdiction of the court. 6. ." The proviso to the Rule instructs that a counter-claim should not be such that would exceed the pecuniary jurisdiction of the court. 6. The time limit that has been specified in Rule 6A governs the date of accrual of the cause of action and not the timing of the counter-claim. Rule 6A implies that a counter-claim in respect of any cause of action accruing to the defendant against the plaintiff may be lodged subject to the cause of action relating thereto accruing prior to the institution of the suit or prior to the defence or the time fixed for the defence being delivered. Rule 6A does not, by any stretch of imagination, restrict the authority of a court to allow an amendment to a written statement to incorporate a counter-claim which the defendant could have already included in the written statement but had, for some reason, not included the same. 7. The judgment in Shyamal Kumar Das is not an authority for the proposition canvassed by the petitioner herein. Indeed, Rule 6A Order 8 of the Code militates against the principle sought to be asserted by the petitioner. 8. Since the order impugned does not reveal any error of jurisdiction or perverse exercise of discretion by the trial court, the same does not call for any interference in this extraordinary jurisdiction. 9. C.O. 1933 of 2014 is dismissed. 10. There will be no order as to costs. Application is dismissed.