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2018 DIGILAW 362 (GAU)

Monoj Ram Phookan v. Ashima Devi

2018-02-26

PRASANTA KUMAR DEKA

body2018
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. Sheeladitya learned counsel for the petitioner and Mr. S Dutta, learned counsel for the respondents. The present petitioners filed Title Suit No. 335/2012 against, in total 7 numbers of defendants claiming declaration, cancellation of sale deeds, partition, recovery of possession and permanent in junction. The defendants No. 1 and 2 filed their written statement-cum-counter claim seeking declaration and partition of Schedule I land among the plaintiffs and counter claimants/defendants. The defendant No. 1 Ashima Devi alias Goswami died on 29.09.2015 during the pendency of the suit leaving behind the present respondents as her legal heirs. On the death of the said defendant No. 1/counter claimant No. 1, the present respondents as her legal heirs, filed an application on 17.12.2015 for substitution of the defendant No. 1/counter claimant. There was no objection from the plaintiffs/petitioners side nor there was any application filed for substitution of the deceased defendant No. 1 by her legal heirs, the present respondents except the one filed by the present respondents. Vide order dated 04.03.2016, the learned Civil Judge No. 2, Kamrup (M) at Guwahati allowed the legal representatives of the deceased counter claimant No. 1 to be brought on record and directed the Bench Assistant to record the same. On the other hand, learned court below held that the plaintiffs/petitioners had not taken steps to substitute the deceased defendant No. 1 and as such, the suit of the plaintiffs/petitioners abated against the deceased defendant No. 1 and directed the suit to proceed against the remaining surviving defendants. 2. The plaintiffs/petitioners thereafter filed an application under Section 151 of the Code of Civil Procedure (CPC) for recalling the order dated 04.03.2016 for setting aside the abatement of the suit against the legal heirs of the deceased defendant No. 1. As against the said application under Section 151 of the CPC, the present defendants/respondents filed their written objection The learned Court below vide order dated 16.07.2016 disallowed the said application for recalling the order dated 04.03.2016 by holding that the suit abated against the deceased defendant No. 1. Being aggrieved, the present petitioners have preferred this revision application for setting aside the impugned orders dated 04.03.2016 and 16.07.2016. 3. Mr. Sheeladitya submits that the very purpose of substitution is that no party should be left unheard in a suit. Being aggrieved, the present petitioners have preferred this revision application for setting aside the impugned orders dated 04.03.2016 and 16.07.2016. 3. Mr. Sheeladitya submits that the very purpose of substitution is that no party should be left unheard in a suit. Order XXII Rule 4 of the CPC does not provide that the substitution application has to be strictly filed by the plaintiffs/petitioners. It is further the contention of Mr. Sheeladitya that the defendant No. 1 died on 29.09.2015 and her legal heirs filed the application for substitution on 17.12.2015 on which date the suit was not abated and the legal heirs were already on record as they on their own volition had filed the application for their substitution as the legal representatives of the deceased counter claimant No. 1. Under such circumstances, the learned court below failed to consider the said aspect of the matter and simply came to the finding that the suit of the plaintiffs/petitioners had abated. 4. Mr. Dutta, on the other hand, objects to the submission made by Mr. Sheeladitya. It is contended that the counter claim is the cross suit in its true form. The substitution of the deceased counter claimant No. 1 by her legal heirs on their own volition could not be termed to be proper substitution in the suit by the plaintiffs/petitioners. Counterclaim is filed on a total separate cause of action and the plaintiffs/petitioners cannot take into consideration of the order passed by the learned court below allowing the substitution. There is absolute negligence on the part of the plaintiffs/petitioners to bring the legal heirs of the deceased defendant No. 1 on record, inasmuch as, the plaintiffs/petitioners are fully aware with respect to the names of the legal heirs of the deceased defendant No. 1 and their family members knew each other moreso, when the plaintiffs/petitioners visited the deceased defendant No. 1 in the hospital. The plaintiffs/petitioners even after filing of the substitution petition by the present respondents, filed an application on 29.1.2016 making a specific prayer for filing substitution petition after finding out the addresses of the legal heirs of the deceased defendant No. 1. Further, there is no error in passing of the order by the learned court below insofar as abatement of the same inasmuch by operation of law, the suit has been abated against the deceased defendant No. 1. Further, there is no error in passing of the order by the learned court below insofar as abatement of the same inasmuch by operation of law, the suit has been abated against the deceased defendant No. 1. Terming the interpretation of the provision of Order XXII Rule 4 of the CPC by the learned counsel for the petitioners as perverse, Mr. Dutta submits that there is no merit in this revision petition moreso, when there is no error apparent or failure on the part of the learned court below to pass appropriate order invoking the appropriate jurisdiction. 5. Considered the submissions of the learned counsels appearing for the parties. The counter claim is always referable to the written statement in a suit. Without any written statement no counter claim can be filed nor the court can entertain any such counter claim. Order VIII Rule 6A(2) of the CPC prescribes that counter claim shall have the same effect as a cross suit so as to enable the court to pronounce the final judgment in the same suit both on the original claim and on the counter claim. In the case of Ramesh Chand Ardawatiya v. Anil Panjwani reported in 2003 AIR SCW 2590, the Hon'ble Apex Court discussed the scheme of Order VIII CPC as amended by Act No. 104 of 1976 as follows:- "28. Looking to the scheme of O. VIII 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 with R. 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by R. 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 R. 9. Thirdly, a counter-claim may be filed by way of a subsequent pleading under R. 9. In the latter two cases the counter-claim though referable to R. 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under O. VI R. 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O. VIII, R. I of the 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 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 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. The framers of the law never intended the pleading by way of counter claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim 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 R. 6A. 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. 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 failed to file any written statement and also having forfeited his right of 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 counter claim 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." 6. It has been held that the counter claim is not entertainable when there is no written statement on record. The prime consideration for a claim to be categorised as "counter claim" is that there must be the written statement directly linked to the counter claim and then only counter claim is entertainable. In the present case in hand, immediately on appearance of the legal heirs of the deceased defendant/counter claimant No. 1 and filing the application for their substitution within the stipulated period of 90 days, it can be held that the suit has not been abated inasmuch as, Rule 6A(2) of the CPC provides that the counter claim having the affect of a cross suit enabling the court to pronounce a final judgment in the same suit both on the original claim and on the counter claim. For passing the judgment of unoriginal claim and the counter claim, the suit is identified as the only suit preferred by the plaintiffs. If the said analogy is taken into consideration and keeping in view the facts and circumstances moreso, when the legal heirs of the deceased defendant/counter claimant No. 1 had on their own volition had applied for their substitution as the legal heirs of the deceased defendant/counter claimant No. 1, the suit cannot be held to be abated. In my considered opinion, the learned court below failed to consider that aspect of the matter and caused a jurisdictional error in holding that the suit is abated. In my considered opinion, the learned court below failed to consider that aspect of the matter and caused a jurisdictional error in holding that the suit is abated. The main intent and purpose of substitution is that the parties to the suit should be heard so that there is no violation of principles of natural justice. Once, the necessary parties are before the court, the view taken by the learned court below is too improper a view which, in the opinion of this court, is not appropriate. Accordingly, this revision petition succeeds. The order dated 04.03.2016 is modified to the extent that the suit has not abated as held by the learned court below and the order dated 16.07.2016 is set aside accordingly. 7. This revision application is accordingly allowed. Interim order, if any, passed earlier shall stand vacated.