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2016 DIGILAW 1186 (MP)

SUDERSHAN TIWARI v. SHEO PRASAD TIWARI TRUST

2016-12-22

S.K.SETH

body2016
ORDER : S.K. SETH, J. 1. Based on an earlier compromise decree passed in Civil Suit No 3-A/1952, petitioners filed a title suit for possession and mense profits in respect of House No. 850 Lordgunj Ward Jabalpur, from respondent No.2(i) to(iv) on the allegations that in 1996 respondents No. 1(a) to (e) after receiving heavy premium, illegally inducted respondents 2 (i) to (iv) to house No. 850 and permitted them to reconstruct or make additions or alteration in the suit house to carry on business in the name and style of M/s. Roopali Collections without payment of rent. Thus, according to petitioners they are entitled to get back possession of House No. 850 and mense profits from respondent No. 2(i) to (iv). 2. Respondents No. 1(a) to (e) in their written statement accepted the compromise decree and that the respondent No.,1 is Public Trust but denied that petitioners are entitled to get back possession of House No. 850. 3. Respondent No. 2(i) to (iv) in their written statement denied the relief claimed in the suit. They also denied that the trial Court has pecuniary jurisdiction to try the suit. Subsequently, they set up a counter-claim against the plaintiffs as well as other respondents by filing an application under Order 6 Rule 17. Trial Court vide order 29.7.2009 rejected the counter claim. This order of the trial Court was challenged in W.P.No. 9172/2010. On 26.8.2010, W.P. was withdrawn with liberty to move fresh application in the trial Court to set-up counter-claim only against the plaintiffs. 4. In view of the said liberty, respondent No. 2(i) to (iv) filed another application and by the order impugned, trial Court allowed them to raise/set-up counter-claim in respect of the suit house No. 850. Hence this petition by the plaintiffs. Now the question that arises for our consideration is as to whether a defendant has unfettered right to file counter-claim at any time after filing of the written statement? In other words, can a counter-claim be filed after filing of the written statement or after the time fixed for the said purpose has expired? 5. Now the question that arises for our consideration is as to whether a defendant has unfettered right to file counter-claim at any time after filing of the written statement? In other words, can a counter-claim be filed after filing of the written statement or after the time fixed for the said purpose has expired? 5. Earlier there was no provision for filing a counter-claim by a defendant before the amendment to the Code in the year 1976 when Rule 6-A was inserted in Order 8 Sub-rule (1) which is relevant reads as follows :- "A defendant in a suit may, in addition to his right to pleading a set-off under Rule 6, set up by way of a 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 filing of the suit but before the defendant has delivered his defense or before time limited for delivering his defense has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court." 6. In our considered opinion the words "either before or after filing the suit but before the defendant has delivered his defense or before time limited for delivering his defense has expired" appearing in Order 8 Rule 6-A (1) C.P.C. would limit the right of defendant to set up by way of counter-claim in respect of a cause of action which arose after he delivered his defense or after the expiry of date of filing defense only. The enabling provision introduced by the 1976 amendment entitles a defendant in a suit to set up by way of counter-claim against the claim of the plaintiff any right or claim in respect of cause of action accruing to him against the plaintiff either before or after filing of the suit but before the defendant has delivered his defense or before the time limited to delivering his defense has expired. But any cause of action which may arise after the filing of the written statement or after the expiry of date for filing the defense will not come within the scope of Order 8 Rule 6- A(1)C.P.C. There is no other limitation for filing a counter-claim as otherwise that would defeat the law of limitation. The restriction regarding the limit of accrual of the period of cause of action is based upon sound public policy, as otherwise the defendant may go on filing one counter-claim after another against the plaintiff in the same suit until it was disposed of and thus the suit may be indefinitely delayed. 7. Considering the scheme of Order 8 as amended by 1976 Act, 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 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A C.P.C. would be a counter-claim against the claim of the plaintiff preferred in the exercise of legal right conferred by Rule 6-A. 8. 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 counterclaim 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 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 finally decided in the course of the same proceedings. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save 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 finally 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 counterclaim. 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 the proceeding. In Mahendra Kumar (1987) 3 SCC 265 counter-claim was sought to be brought on record after the filing of a written statement which was turned down by the trial court upon a misreading of Rule 6-A(1) that the counter-claim filed after the filing of the written statement was ipso facto not maintainable. The Supreme Court clarified the legal position, that the only requirement of Rule 6-A(1) was that the cause of action for the counter-claim should have arisen before the filing of the written statement and if that was so, the counter-claim was not simply excluded. 9. In Shanti Rani Das Dewanjee (1997) 8 SCC 174 , the Supreme Court has held that the right to file a counter-claim does not come to an end by filing of the written statement once. It was held that right to file counter-claim is referable to the date of accrual of cause of action, if the cause of action had arisen before or after filing of the suit and such distinct cause of action continued up to the date of filing of the written statement or extended date of filing of written statement. The expression 'cause of action' means bundle of those relevant and material facts constituting infringement of a legal right plus facts constituting the right itself. The expression 'cause of action' means bundle of those relevant and material facts constituting infringement of a legal right plus facts constituting the right itself. In Ramesh Chand Ardawatiaya (2003)7 SCC 350 it was held that: "Pleading by way of counter-claim run with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited to delivery of the defense has expired, then neither can the written statement be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6-A must find its place in the written statement. 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 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." 10. In Rohit Singh (2006) 12 SCC 734 it was held that normally, a counter-claim, though based on a different cause of action than the one set out in a suit by the plaintiff could be made. But, it appears to us that a counterclaim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an interpleader suit. 11. In the light of the foregoing discussion, we hold that in a suit defendant does not have unfettered or an unqualified right to set up counter-claim at any stage of the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an interpleader suit. 11. In the light of the foregoing discussion, we hold that in a suit defendant does not have unfettered or an unqualified right to set up counter-claim at any stage of the suit. After going through the order impugned, we find that the trial Court without adverting to various facets of law as laid down by the Supreme Court and in a laconic manner without application of judicial mind allowed the contesting defendants to set-up the counterclaim. Accordingly, we set aside the order impugned and direct the trial Court to decide the application afresh keeping in view the law as laid down by the Supreme Court. The cost of this petition shall follow the final event. 12. Ordered accordingly.