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2017 DIGILAW 1291 (ORI)

Rama Chandra Mohanty v. Bhuban Barik

2017-11-10

BISWANATH RATH

body2017
JUDGMENT Biswanath Rath, J. - This Civil Misc. Petition involves an order allowing amendment so also accepting the counter-claim to the written statement. 2. Assailing the impugned order, vide Annexure-1, Sri A.P. Bose, learned counsel for the petitioner referring to the provision contained in Order 8, Rule 6-A of C.P.C. pleaded that for filing of the written statement on 18.2.2005 even though the amendment could be maintainable for the trial having not been commenced but no counter-claim in the year 2017 would have been entertained. Taking this Court to several documents, Sri Bose, learned counsel for the petitioner established that the suit was initiated in the year 2000, vide T.S. No. 21/2000 and re-numbered as C.S. No. 906/2010. Written statement was also filed within time frame on 18.2.2005, whereas an application for amendment along with a counter-claim appearing at Annexure-4 was also filed in the month of June, 2017. Referring to a decision of the Hon'ble apex Court in Ramesh Chand Ardawatiya vs. Anil Panjwani reported in AIR 2003 SC 2508 and other decision of this Court in Shrimati Basanti Jena vs. Smt. Apani Bewa & others, reported in 2013 (Supp.-II) OLR-616 , Sri Bose, learned counsel for the petitioner submitted that for the restrictions in the provision of Order 8, Rule 6-A of C.P.C. and the decisions of the Hon'ble apex Court as well as this Court referred to herein above, the impugned order remains unsustainable. Hence, Sri Bose requested this Court for interfering with the impugned order at Annexure-1 and setting aside the same. 3. Sri U.C. Mishra, learned counsel for O.Ps.1 & 2, while opposing the submissions of the learned counsel for the petitioner, referring to the decision of the Hon'ble apex Court in Vijay Prakash Jarath vs. Tej Prakash Jarath reported in AIR 2016 SC 1304 submitted that the decision having the support of the claim of the O.Ps.1 & 2 thus has the support to the impugned order. Sri Mishra thus contended that there is no scope for interfering with the impugned order. 4. Considering the rival contentions of the parties, this Court finds, there is no dispute that the suit was filed in the year 2004 and the written statement was also filed on 18.2.2005. Similarly, the application for amendment of the written statement along with the counter-claim was also filed in the month of June, 2017. 4. Considering the rival contentions of the parties, this Court finds, there is no dispute that the suit was filed in the year 2004 and the written statement was also filed on 18.2.2005. Similarly, the application for amendment of the written statement along with the counter-claim was also filed in the month of June, 2017. For the restriction in the Order 8, Rule 6-A of C.P.C., this Court is now to proceed to ascertain as to whether the counterclaim having been filed after thirteen years of initiation of the suit could be entertainable. This Court takes into consideration the provision at Order 8, Rule 6-A of C.P.C., which reads as follows :- "Order 8, Rule 6-A-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 to 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 plaints." 5. Reading of the provision quoted herein above, it appears, for the restriction in the Rule 6-A(I), a counter-claim can only be filed in respect of a cause of action accruing the defendants against the plaintiff either before or after filing of the suit but before the defendants have delivered their defence or before the time limited for settling their defence has expired. Whether such counter-claim is in the nature of a claim for damage or not ? Whether such counter-claim is in the nature of a claim for damage or not ? Taking into consideration the decisions cited by the learned counsel for the petitioner, as indicated herein above, in paragraph-28 of which the Hon'ble apex Court held as follows :- "28. Looking to the scheme of Order 8 as amended by Act No. 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 counterclaim 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 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order 8, Rule 9 of the C.P.C. 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 counterclaim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. The framers of the law never intended the pleading by way of counterclaim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counterclaim 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. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of 'subsequent pleading' as there is no 'previous pleading' on record. In the present case, the defendant having felled to file any written statement and also having forfeited his right to filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counterclaim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim." Similarly, taking into consideration a similar situation, this Court referring to the judgment referred to herein above delivering a judgment, vide 2013 (Supp.-2) OLR 616 has also the same view. 6. Looking to the provision contained in Order 8, Rule 6-A(I) of C.P.C. and considering the aforesaid decisions, this Court is of firm opinion that the counter-claim having been filed after thirteen years of filing of the written statement is per se not maintainable. 7. Now coming to examine the decision cited by Sri Mishra, learned counsel for O.Ps.1 & 2 in Vijay Prakash Jarath (supra), the suit involved there was instituted in the year 1992, written statement was also filed in the year 1992 and the counterclaim was filed in the year 1996. 7. Now coming to examine the decision cited by Sri Mishra, learned counsel for O.Ps.1 & 2 in Vijay Prakash Jarath (supra), the suit involved there was instituted in the year 1992, written statement was also filed in the year 1992 and the counterclaim was filed in the year 1996. The Hon'ble apex Court though taking into account the decision in Ramesh Chand Ardawatiya (supra) applying the discretion has condoned the delay in filing the counter-claim. Further taking into consideration that the High Court erred in taking into consideration that for the cause of action arose therein previous to filing of the written statement, for the different in the facts scenario herein, this Court finds, the decision shown by the learned counsel for O.Ps.1 & 2 has no application to the present case. 8. Under the circumstance, this Court while disapproving the reasons accepting the counter-claim by the trial court interferes with the impugned order at Annexure-1 and sets aside the order at Annexure-1 so far it relates to acceptance of the counter-claim while maintaining the order, vide Annexure-1 so far it relates to amendment of the written statement. Finding the suit is of the year 2004 though re-numbered in 2010, this Court directs the trial court to conclude the trial involving the suit indicated herein above within a period of six months from the date of communication of this order. Amended written statement be filed within a period of ten days hence. The Civil Misc. Petition succeeds in part. The order at Annexure-1 is interfered with and modified to the extent indicated herein above.