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2018 DIGILAW 468 (RAJ)

NIROTTAM SHARMA v. RAMKISHORE

2018-02-07

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : Sanjeev Prakash Sharma, J. The short question involved in the present petition is whether on consideration of facts & circumstances, where the Court does not grant time to the plaintiff to file reply to the counter claim, can a prayer be made by the plaintiff for filing reply or not? and can such a prayer subsequently be rejected on the ground of delay in making such a prayer. 2. Facts of the case reveal that a suit was filed for permanent injunction to which written statement was filed on 5.2.2014. In the written statement itself, the defendant raised its counter claim and also deposited Court fees, thereto. 3. However, as has come out from the order sheets of the trial Court, the trial Court while taking on record the written statement, did not take note of the counter claim filed by the defendant nor it gave any time in terms to file reply to the plaintiff, in terms of order 8 Rule 6A(3). The suit proceeded with framing of issue and thereafter, it appears that the plaintiff thereafter engaged other counsel who on examination of the record found that the counter claim had not been taken on record, nor time to file reply had been granted by the Court below to the plaintiff. Faced with such a situation, the application was moved by the counsel for the plaintiff stating the aforesaid facts and also mentioning that earlier the factual and legal position was not known to the plaintiff and as soon as it has been informed, he has prayed for giving him time to file reply to the counter claim. The said application has been rejected. It may be noted that in the said application, it has also been prayed for granting time to file rejoinder, which has also been rejected by the counter impugned order dated 18.11.2016. 4. Learned counsel for the petitioner-plaintiff submits that the provisions of Order 8 Rule 6A(3) enjoined upon the learned Court below to have granted time to the petitioner-plaintiff to file reply to the counter affidavit. He has also pointed out that in the event of default in filing reply, the counter claim would have to be accepted in terms of Order 8 Rule 6E of CPC. Learned counsel has also relied upon the judgment delivered by the High Court of Madhya Pradesh in the case of Bisartipal Vs. He has also pointed out that in the event of default in filing reply, the counter claim would have to be accepted in terms of Order 8 Rule 6E of CPC. Learned counsel has also relied upon the judgment delivered by the High Court of Madhya Pradesh in the case of Bisartipal Vs. Ratnawati decided on 30.9.2005. 5. Per contra, learned counsel for the respondents-defendant submits that while it is true that the order sheets do not depict of the Court granting time for filing reply to the counter claim, but in view of the tenor of the application moved by the petitioner-plaintiff, it is apparent that there has been a delay in seeking time to file reply and he was having a knowledge of the counter claim having been filed along with the written statement, it was therefore, the duty of the plaintiff to have sought time to file reply earlier on account of his default therefore, Order 8 Rule 6E would come into operation and the counter claim has to be accepted. 6. Having noted submissions as above, and after a careful consideration of the general provisions of law, it would appropriate to refer to the said provisions of the Order 8 Rule 6, which reads as under :- "6A. Counter-claim by defendant-(1) A defendant in a suit may, in addition of 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 counter-claim of the defendant within such period as may be fixed by the Court. (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. Or 6E. Default of plaintiff to reply to counter-claim- If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit." 7. In the light of the provisions if we look to the facts of the case then the default as mentioned in Rule 6E above would apply only when time has been laid down by the Court to file reply. The default would not be with regard to seeking time to file reply, but would occur where time has been granted by the Court and the plaintiff does not file his reply within that time. Thus, the action of granting time by the Court precedes the role of the plaintiff to file reply. 8. As in the present case, Court has not given time to plaintiff file reply to the counter claim and therefore, it cannot be said that the default would lie on the part of the plaintiff, when the plaintiff moved an application praying for allowing him to file reply to the counter-claim. The Court was duly bound to give time to the plaintiff in terms of Order 6A(3) and if within that time the plaintiff would not have filed his reply, Order 8 Rule 6(E), would have come into operation. The view is supported by the judgment of Bisarti Bal Vs Ratnawali of MP High Court as cited by learned counsel for the petitioner. The Court has observed as under :- "(5) To consider the rival condition of the parties in this case, factual position is not disputed. The appellants filed a counter claim/cross suit under Order 8 Rule 6-A CPC. This counter claim requires Court fee and until and unless Court fee is paid, counter claim itself was defective. The Court has observed as under :- "(5) To consider the rival condition of the parties in this case, factual position is not disputed. The appellants filed a counter claim/cross suit under Order 8 Rule 6-A CPC. This counter claim requires Court fee and until and unless Court fee is paid, counter claim itself was defective. The trial Court after filing of the written statement has not extended any opportunity to file written statement to counter claim as required under Rule 6-G of Order 8 CPC which was mandatory requirement under the law after entertaining the counter claim in the matter. As soon as counter claim was entertained after payment of the court fee, the trial Court ought to have extended such opportunity to the plaintiff/respondent to file written statement. But such opportunity was not allowed to the plaintiff/respondent. In these circumstances, trial Court committed gross error in not extending such opportunity to the plaintiff/respondent which has been rectified by the appellate Court. Now plaintiff/respondent shall get an opportunity to file reply to the counter claim. On the basis of pleadings, trial Court has to frame issues, if necessary, and thereafter extending opportunity to the parties to lead evidence, has to decide the case afresh." 9. Taking into consideration the facts mentioned above and taking note of the fact that the proceedings in the trial Court are at the stage of evidence of the plaintiff, it would be appropriate to direct the trial Court to first grant time to the plaintiff to file his reply to the counter claim within the time as it may so fix and thereafter proceed with the suit and counter claim as per law. 10. The writ petition is allowed.