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Madhya Pradesh High Court · body

2018 DIGILAW 372 (MP)

Nirmala Sharma (Smt. ) v. Devrat Sharma

2018-04-03

ANAND PATHAK

body2018
ORDER 1. The present petition under Article 227 of the Constitution of India has been preferred by petitioners/plaintiffs being crestfallen by order dated 11.10.2017 (Annexure P-1) passed by the trial Court;whereby, the application preferred by respondent No. 1/defendant under Order VIII rule 6-A of CPC has been allowed. 2. Precisely stated facts for adjudication of the case are that a suit was filed by petitioners/plaintiffs for declaration and permanent injunction in respect of suit property on the basis of family settlement. Petitioners and respondent No. 1 are members of same family. As per the allegations, respondent No. 1 prepared a forged and fabricated Will dated 4.8.2004 in his favour in order to defeat the right of the plaintiffs. Defendant No. 1 caused his appearance before the trial Court on 11.5.2016 and on 27.6.2016, written statement was filed. Thereafter, an application under Order VI rule 17 was preferred by respondent No. 1 on 31.8.2017, (after more than one year) which got dismissed vide order dated 14.9.2017. Thereafter, respondent No. 1 preferred the application under Order VIII rule 6A of CPC before the trial Court for taking counter-claim on record, therefore, petitioners/plaintiffs are before this Court. 3. It is submitted by learned counsel for the petitioners that Order VIII rule 6A of CPC contemplates two exigencies which are not fulfilled by respondent No. 1 before filing counter-claim. Therefore, trial Court erred in passing the impugned order in favour of respondent No. 1; whereby, counter-claim has been taken on record. While relying upon the provisions itself, counsel stressed over the legal position that counter-claim not only barred by limitation but also incorporates the 'Cause of Actions' which pertains to post filing of written statement, therefore, same cannot be taken on record. He relied upon the decisions of Hon'ble apex Court as well as this Court in the matters of Ramesh Chand Ardawatiya v. Anil Panjwani, [ (2003) 7 SCC 350 ] and Sudershan Tiwari and anr. v. Prasad Tiwari and ors. [2017 (4) MPLJ 98] in support of his submissions. 4. Learned counsel for the respondent No. 1 opposed the prayer made by the petitioners and supported the impugned order on the ground that the counter claim could have been filed even after the time of limitation for filing written statement. v. Prasad Tiwari and ors. [2017 (4) MPLJ 98] in support of his submissions. 4. Learned counsel for the respondent No. 1 opposed the prayer made by the petitioners and supported the impugned order on the ground that the counter claim could have been filed even after the time of limitation for filing written statement. Cause of action on the basis of which the counter-claim has been filed by the respondent No. 1 accrued before the filing of written statement. He relied upon the decisions of apex Court in the matter of Khatri Hotels Private Limited and anr. v. Union of India and anr. [ (2011) 9 SCC 126 ] and Vijay Prakash Jarath v. Tej Prakash Jarath, [ (2016) 11 SCC 800 ] and submits that trial Court rightly passed the impugned order. He also relied upon the judgment of apex Court in the matter of Mahendra Kumar and anr. v. State of M.P. and ors. [1987 JLJ 593(SC)= (1987) 3 SCC 265 ] and submits that rule 6-A of Order VIII of CPC does not bar the filing of counter-claim by the defendant after he had filed the written statement. He prayed for dismissal of the petition. 5. Heard the learned counsel for the parties at length and perused the documents appended to the petition. 6. For ready reference, rule 6A of Order VIII is reproduced hereinbelow : Rule 6A. 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 the suit, but before 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 counter-claim. (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 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. 7. While interpreting the provisions of Order VIII rule 6A of CPC, Hon'ble apex Court in the matter of Ramesh Chand Ardawatiya (supra), has categorically held that a counter-claim can be filed even after filing of written statement but it should satisfy the conditions as enumerated in rule 6A. Para 26 of the said judgment is worth consideration, which reads as under : “26. A perusal of the abovesaid provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of rule 6A are-"A defendant in a suit may, in addition to his right of pleading a set-off under rule 6,.....before the defendant has delivered or before the time limited for delivering of defence has expired". These words go to show that a pleading by way of counter-claim runs 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 for delivery of the defence 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 6A must find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence 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 6A 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 the conduct of the defended, 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.” 8. From perusal of the said enunciation of law, it becomes clear that once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter-claim can be allowed to be raised, because the counter-claim under rule 6A must find its place in the written statement. The reason is obvious because the rule 6A stipulates another exigency and which is pertaining to cause of action because the cause of action in the counter-claim is confined only to the extent of filing of defence and not beyond that. In other words, after satisfaction of twin exigencies as referred in clause 6A regarding 'Cause of Action' (to the extent of filing of written statement) and another limitation (available in respect of written statement) are satisfied. Here in the present case, fact situation itself is to be seen whether either of the conditions are satisfied or not. 9. Here in the present case, suit was filed in April, 2016 and on 27.6.2016, written statement was filed. Thereafter, on 31.8.2017, respondent No. 1 filed an application under Order VI rule 17 CPC for incorporation of pleading of counter claim in the written statement. The said application was rejected by the trial Court vide order dated 14.9.2017. It appears that said order attained finality. Thereafter, on 31.8.2017, respondent No. 1 filed an application under Order VI rule 17 CPC for incorporation of pleading of counter claim in the written statement. The said application was rejected by the trial Court vide order dated 14.9.2017. It appears that said order attained finality. Thereafter, an application under Order VIII rule 6A of CPC was preferred by respondent No. 1 on 21.9.2017, almost a year of filing of written statement. The said application/counter-claim bore the pleadings in respect of Order dated 7.2.2017 passed in MCrC No. 4131/2016; where, as per the allegations of respondent No. 1, the status of plaintiffs became as that of encorachers over the land in question. The incorporation of such pleadings appears to be subsequent to the filing of written statement by defendant (on 27.6.2016) as on 27.6.2016, respondent No. 1 could not have incorporated the pleadings in counter-claim in respect of order dated 7.2.2017 therefore, it is obviously subsequent in nature vis-a-vis written statement. 10. Besides that, once the application for amendment under Order VI rule 17 has been rejected and written statement was not allowed to be amended, and limitation and 'Cause of Action' components were not available to respondent, therefore, those pleadings which respondent No. 1, now want to incorporate in the counter-claim was not available in the written statement, therefore, on this basis also, counter-claim ought not to have been accepted by the trial Court. 11. Furthermore, defendant caused his appearance in the trial Court on 11.5.2016 and on 27.6.2016 written statement has been filed, thereafter, on 14.9.2017, i.e. almost after one year application was filed for taking on record the counter-claim, therefore, the limitation for filing the counter-claim was already lapsed much prior to filing of counter-claim, therefore, requirements contained under Order VIII rule 6A CPC are not satisfied. Therefore, trial Court erred in passing the impugned order and accepting the counter-claim on record. The judgment of Hon'ble apex Court in the matter of Mahendra Kumar (supra), does not help respondent as precedent. 12. It is true that counter claim can be filed even after written statement is filed but certainly same is circumscribed by the factor of 'Limitation' and 'Cause of Action'. 13. In the cumulative analysis, trial Court erred in passing the impugned order while allowing the application under Order VIII rule 6A CPC of respondent/defendant No. 1. 12. It is true that counter claim can be filed even after written statement is filed but certainly same is circumscribed by the factor of 'Limitation' and 'Cause of Action'. 13. In the cumulative analysis, trial Court erred in passing the impugned order while allowing the application under Order VIII rule 6A CPC of respondent/defendant No. 1. The counter-claim could not have been taken on record after the period of limitation for filing written statement was over and in respect of cause of action which travelled beyond the timeline of filing written statement. 14. Resultnatly, petition preferred by the petitioners/plaintiffs is allowed. Impugned order dated 11.10.2017 (Annexure P-1) is hereby set aside. trial Court to proceed as if no counter-claim exists on record. Trial Court to proceed accordingly.