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2016 DIGILAW 742 (KER)

Suhail Babu v. Thazhath Karthyani

2016-08-31

A.HARIPRASAD

body2016
ORDER : A. HARIPRASAD, J. 1. Is it legal for a court to exclude a portion of the counter claim in a suit, that too after framing the issues, on the ground that later the written statement was amended and an additional relief was incorporated? 2. Heard the learned counsel appearing for the revision petitioner and the respondents. 3. Revision petitioner is the 1st defendant in a suit for permanent prohibitory injunction. Respondents 1 and 2 are the plaintiffs and the 3rd respondent is the 2nd defendant in the suit. The plaintiffs filed the suit on the basis of a stipulation in a partition deed permitting them to take water from a well situated in the land allotted to the 2nd defendant, under whom the 1st defendant (revision petitioner) is claiming a right. The revision petitioner contended that as per the stipulation in the partition deed, only when there is no water in the well situated in A schedule property to the partition deed or when it is dried up, the occupants in the house in the said property become entitled to take water from the disputed well. It is the contention of the revision petitioner that the respondents 1 and 2 approached the court, claiming a decree for prohibitory injunction in respect of the right to take water, after filling up the well in their property. The revision petitioner therefore contended that the respondents 1 and 2 have no right to draw water from the well in his property after contravening the stipulations in the partition deed. Acceptability of these contentions will have to be answered in the suit. 4. The revision petitioner (1st defendant) entered appearance in the suit and filed a written statement. In the written statement, a counter claim is raised seeking reliefs against the respondents 1 and 2 (plaintiffs). It is the submission of the counsel appearing on both sides that the trial court framed issues in the suit, as well as in the counterclaim. Thereafter the respondents installed a pump set in the disputed well pending the suit. The revision petitioner therefore filed an interlocutory application for amending the written statement to incorporate a prayer for mandatory injunction directing the respondents to remove the pump set. The revision petitioner contended that the application for amendment of the written statement was filed before commencement of the trial. The revision petitioner therefore filed an interlocutory application for amending the written statement to incorporate a prayer for mandatory injunction directing the respondents to remove the pump set. The revision petitioner contended that the application for amendment of the written statement was filed before commencement of the trial. The respondents objected to the amendment application by filing a counter statement. Learned trial Judge after hearing the parties, allowed the amendment of the written statement on terms. The revision petitioner paid the cost and he was allowed to carry out the amendment. Subsequently the trial court framed an additional issue touching upon the amendment so made in the written statement. Thereafter, the respondents filed an interlocutory application (I.A. No. 884 of 2013) under Order 23, Rule 1 (3) of the Code of Civil Procedure, 1908 (in short, "Code") seeking withdrawal of the suit with liberty to file a fresh suit. The revision petitioner opposed the application. However the court below allowed the request made by the respondents to withdraw the suit with a liberty to file a fresh suit. The order was passed by the trial court on 27.03.2013. On the same day, the trial court passed the impugned order on I. A. No.887 of 2013. The said application was filed under Order 8, Rule 6C of the Code, seeking exclusion of the counterclaim. 5. Learned counsel for the revision petitioner contended that the impugned order is legally incorrect for various reasons. According to him, the reasoning of the court below, that the additional relief claimed by way of a mandatory injunction against the respondents could be brought only in a separate suit, is legally unsustainable. For properly appreciating the contentions, following provisions of the Code are to be noticed. 6. Order 8, Rule 6A of the Code enables a defendant to make a counter claim. For properly appreciating the contentions, following provisions of the Code are to be noticed. 6. Order 8, Rule 6A of the Code enables a defendant to make a counter claim. It reads as follows: "Counter-claim by defendant.--(l) 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 counterclaim 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 plaints." On a careful reading of the said provision, it is clear that a defendant in a suit may not only put up his defence, but make a claim for set off under Order 8, Rule 6 of the Code or make a counter claim against the claim of the plaintiff. Only interdict in the provision is that the counter claim should be in respect of a cause of action accrued 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. It is clear from the provision that for invoking the right to make a counter claim, what is important is the accrual of the cause of action. It is clear from the provision that for invoking the right to make a counter claim, what is important is the accrual of the cause of action. The Supreme Court in Mahendra Kumar v. State of M.P. 1987 (2) KLT SN 9 (C.No. 10) SC : (AIR) 1987 SC 1395 has held that the provision does not bar the filing of a counter claim by the defendant after filing the written statement. In that case, it was held that the counter claim filed by the appellant after filing the written statement could not be said to be not maintainable as the cause of action for the counter claim had arisen before the filing of the written statement. 7. In this case, it is an admitted fact that the counter claim was raised in the original written statement itself. It is also an admitted fact that issues have been cast both in the suit and counterclaim. Sub-rule (4) of Order 8, Rule 6A of the Code makes it clear that the counter claim shall be treated as a plaint and governed by the rules applicable to the plaints. The provision in sub-rule (3) above makes it clear that the plaintiff in the suit shall be at liberty to file a written statement in answer to the counter claim raised by the defendant. It is further clear from sub-rule (2) that a counter claim shall have the same effect as a cross suit. 8. Order 8, Rule 6C of the Code deals with exclusion of counter claim. It reads as follows: "Exclusion of counter-claim.-Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit." This provision is intended to invoke the courts power in a case where there will be utter embarrassment if the suit and counter claim are tried together. Very many situations are possible in which it may be greatly inconvenient to try the suit and counter claim together. Very many situations are possible in which it may be greatly inconvenient to try the suit and counter claim together. Normally, only in such cases the power vested in the court for exclusion of a counter claim should be exercised. The laudable object of avoiding multiplicity of proceedings could be achieved by trying a suit and counter claim under normal circumstances. 9. Besides, the time for exercising the courts power for excluding a counter claim is also explicitly mentioned in the provision. It is clearly stated in the provision that when the plaintiff applies to the court for exclusion of a counter claim, after hearing the parties, if the court is of the view that the issues raised in the counter claim could be better decided in an independent suit, then it may exclude the counter claim at any time before the issues are settled in relation to the counter claim. The time factor provided in the provision is important because once the court has cast the issues in respect of a counter claim, it is evident that it must have applied its mind and found that both the suit and the counter claim could be considered together without any difficulty or embarrassment. Virtually, any order passed for excluding a counter claim after settling the issues will have the effect of back tracking the steps. Therefore, exclusion of a counter claim subsequent to the settlement of issues is not contemplated by the Code. 10. Yet another question arising for determination is whether the additional relief claimed by the revision petitioner by way of an amendment to the written statement could be excluded saying that the claim was raised subsequent to the delivery of defence? The answer can only be in the negative for obvious reasons. As mentioned above, a counter claim, if laid in accordance with the provision, shall be treated as a plaint and it shall be governed by the rules applicable to the plaints. It is amply clear from Order 6, Rule 17 of the Code that the court has power to allow amendment of the pleadings subject to the prescription in the proviso to Order 6, Rule 17 of the Code. It is amply clear from Order 6, Rule 17 of the Code that the court has power to allow amendment of the pleadings subject to the prescription in the proviso to Order 6, Rule 17 of the Code. It says that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial The Supreme Court in various decisions has held that this embargo is directory in nature. That apart, in this case the relief of mandatory injunction to remove the pump set was necessitated on account of a subsequent act by the plaintiffs. In other words, the relief newly incorporated in the written statement could not have been claimed by the defendant in the counter claim as it is a situation resulted from a subsequent development. Moreover, the court below had allowed the written statement to be amended on terms and additional issues also had been cast. Therefore, viewing from any angle, the exclusion of counter claim regarding the additional issue is legally unsustainable. 11. Further aspect is that both the interlocutory applications for withdrawal of the suit(I.A. No. 884 of 2013)and for exclusion of the counterclaim(I.A. No 887 of 2013) were disposed of by the court below on the same date. Fact that the plaintiffs were allowed to withdraw the suit with a liberty to file a fresh suit on the same cause of action is mentioned in the impugned order. It is therefore all the more clear that the exclusion of counter claim cannot be sustained because the trial court lost sight of the aim and purpose of Order 8, Rule 6C of the Code. If the power of exclusion of counterclaim is intended to avoid an embarrassment at the trial or to remove the difficulties in trial, there is no justification for doing so after the suit was withdrawn under Order 23, Rule 1 of the Code. 12. In conclusion, it can only be found that the court has no power to exclude a counter claim after settling the issues. 12. In conclusion, it can only be found that the court has no power to exclude a counter claim after settling the issues. Further, if a defendant in a suit while delivering his defence has raised a counterclaim and the court has framed issues thereon, fact that subsequently he amended his pleadings will not take away his right to incorporate additional reliefs in the counter claim. More precisely, the restrictions in Order 8, Rule 6A of the Code relating to time of raising a counterclaim cannot be extended to one already raised in accordance with law, so long as Order 6, Rule 17 of the Code allows him to amend the pleadings. Therefore the impugned order in this case, for the reasons above stated, is legally incorrect. 13. In the result, the Revision Petition is allowed. The impugned order is set aside. Court below is directed to dispose of the counter claim in accordance with law within a period of six months from the date of receipt of a copy of this order. 14. All pending Interlocutory Applications will stand closed.