Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 695 (ORI)

Champi Das v. Sansai Das Ponka @ Sansai Ponka

2017-07-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. The seminal question that arises for consideration in the petition is as to whether the claim in respect of the property, which is not the subject matter of the suit, can be the subject matter of counter claim ? 2. Opposite party no.1 as plaintiff instituted C.S. No.62 of 2014 in the court of the learned Civil Judge (Sr. Divn.), Umerkote for declaration of right, title and interest and declaration that the two registered Willnama Nos.8/04 and 6/09 as null and void impleading the petitioners as well as opposite party no.2 as defendants. Pursuant to issuance of summons, the defendant nos.2 to 4, petitioners herein, entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, they filed an application under Order 6 Rule 17 C.P.C. to amend the written statement and introduce counter claim. The plaintiff filed objection to the same. Learned trial court came to hold that in the application for amendment, the defendants raised counter claim in respect of the properties which are not related to the subject matter of the suit and prayed inter alia for partition of the same. Learned trial court having rejected the same, the instant petition has been filed under Article 227 of the Constitution of India. 3. Heard Mr. Basudev Mishra, learned counsel for the petitioners and Mr. Debabrata Dash, learned counsel for the opposite parties. 4. Mr. Mishra, learned counsel for the petitioners submitted that the trial of the suit has not begun. The defendants filed application for amendment of the written statement to introduce counter claim. The cause of action for counter claim arose before filing of the written statement. The proposed amendment is formal and the same will not change the nature and character of the suit. No prejudice shall be caused to the plaintiff in the event counter claim is adjudicated upon along with the main suit. He relied on the decision of this Court in the case of Khetramohan Tripathy and another vs. Basudev Acharya, 2016 (I) ILR-CUT-112. 5. Per contra, Mr. Dash, learned counsel for the opposite parties contended that by the counter claim the defendants sought to incorporate certain plots, which are not subject matter of dispute. Learned trial court has rightly rejected the application for amendment. 6. 5. Per contra, Mr. Dash, learned counsel for the opposite parties contended that by the counter claim the defendants sought to incorporate certain plots, which are not subject matter of dispute. Learned trial court has rightly rejected the application for amendment. 6. An identical matter came up before this Court in the case of Purna Chandra Biswal vs. Kiran Kumari Brahma, 2017 (I) OLR-1061. This Court held thus : “8. Order 8 Rule 6-A(1) and 6-C, which are hub of the issue, are quoted below:- “6-A(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 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. xxx xxx xxx 6-C. Where any 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.” 9. The words “any right” appearing in Rule 6(A)(1) of Order 8 C.P.C. mean right over the suit land. The same must be in respect of cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. Thus the defendant cannot file a counter claim in respect of the property, which is not the subject matter of suit.” 7. The ratio in the case of Purna Chandra Biswal (supra) proprio 8. The decision, in the case of Khetramohan Tripathy and vigore applies to the facts of the case. another (supra), relied upon by Mr. Mishra, learned counsel for the petitioners, is distinguishable on facts. The ratio in the case of Purna Chandra Biswal (supra) proprio 8. The decision, in the case of Khetramohan Tripathy and vigore applies to the facts of the case. another (supra), relied upon by Mr. Mishra, learned counsel for the petitioners, is distinguishable on facts. In the said case, question arose as to whether the counter claim can be filed after filing of the written statement ? This Court in paragraph 13 held thus: “Thus, when a counter-claim is preferred by way of amendment incorporated subject to leave of the Court in a written statement or a counter-claim is filed by way of subsequent pleading, the same 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 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 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 counterclaims, 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 could 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.” 9. Resultantly, the petition, sans merit, is dismissed. No costs.