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Himachal Pradesh High Court · body

2019 DIGILAW 1759 (HP)

Tulsi Ram v. Kaka Ram

2019-11-20

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has, inter alia, prayed for the following reliefs: “It is, therefore, respectfully prayed that the records of the case may kindly be called for, this petition may kindly be allowed, order dated 19.4.2017 passed by Ld. Civil Judge, Junior Division, Nahan, District Sirmaur, Himachal Pradesh in Civil Suit No. 119/1 of 16; titled as Tulsi Ram Vs. Kaka Ram, may kindly be set aside, to the extent that the plaintiff/non-counter claimant has not been given an opportunity to file written statement to the Counter claim and without completing the pleadings in the matter, the learned Court below has proceeded to frame the issues and it is prayed that the plaintiff/Non-Counter Claimant may kindly be permitted to file written statement to the counter claim.” 2. Brief facts necessary for the adjudication of the present petition are that the petitioner herein has filed a suit for permanent prohibitory injunction before the Court of learned Civil Judge (Senior Divison), Nahan, District Sirmaur, i.e., Civil Suit No. 60/2016, titled as Tulsi Ram Vs. Shri Kaka Ram and others for restraining the defendants (respondents herein) from causing any interference in the suit land. 3. It appears from the record that when written statement to the plaint was filed by the defendants, they also filed a Counter Claim. This was done on 29.09.2016, on which date, learned Court below, i.e., the Court of learned Civil Judge (Junior Division), Nahan, District Sirmaur passed the following order: “29.09.2016 Present: Sh. S.P. Kashyap, Ld. Advocate, for plaintiff. Sh. Vivek Mehta, Ld. Counsel for the defendants. Written statement filed. Today Counter Claim by Counter claimants and application u/o 39 Rules 1 & 2 CPC be also filed. Let Counter Claim and application u/o 39 Rules 1 & 2 CPC be registered. Let case be put up for replication and issues on 29.11.2016.” 4. Record of the learned Trial Court, which stands requisitioned, demonstrates that neither any formal notice was issued by the learned Trial Court on the Counter Claim so filed nor any time was granted to the plaintiff to file the response to the same. Yet proceedings continued. In the interregnum, opportunities were sought by the plaintiff to file replication, which were granted by the learned Trial Court. 5. Yet proceedings continued. In the interregnum, opportunities were sought by the plaintiff to file replication, which were granted by the learned Trial Court. 5. Thereafter, on 19.04.2017, learned Trial Court framed the issues and the case was ordered to be listed for recording evidence of the plaintiff. After recording the evidence of plaintiff, the matter is now pending before the learned Trial Court for recording defendants’ evidence. 6. For this purpose, when the matter was listed before the learned Trial Court on 21.04.2018, on the said date, no DWs. were present in the court, as steps had not been taken in this regard by the defendants. Record demonstrates that on the said date, learned counsel for the plaintiff stated before the learned Trial Court that plaintiff had not filed written statement to the Counter Claim. In response to the same, learned counsel for the defendants/Counter Claimants stated that right to file the written statement was struck down by the learned Court. Following order was passed by the learned Trial Court on 21.04.2018: “No DWs present, as steps not taken. At this stage, learned counsel for plaintiff has stated that he has not filed written statement in the present case qua counter claim, whereas learned counsel for defendants/counter claimants has stated that the right to file the written statement was struck down by the Court. Perusal of case file previous zimni orders show that on dated 29.09.2016, written statement alongwith counter claim and application under Order 39 Rules 1 and 2 CPC was filed by defendants and thereafter the case was listed for filing of replication and issues for 29.11.2016. It is evident that the case has not been listed for filing of written statement to the counter claim, nor there is any order that the right of filing of written statement qua the counter claim shall be struck down. Learned counsel for plaintiff has further prayed that he intends to prefer revision in the present case before the Hon’ble High Court of H.P. Prayer allowed in the interest of justice. Now case be listed for 21.05.2018 as prayed by learned counsel for both the parties.” Thereafter, this petition has been filed by the petitioner claiming reliefs already enumerated hereinabove. 7. Now case be listed for 21.05.2018 as prayed by learned counsel for both the parties.” Thereafter, this petition has been filed by the petitioner claiming reliefs already enumerated hereinabove. 7. Learned counsel for the petitioner has argued that in the absence of any opportunity having been granted to the petitioner-plaintiff to file response to the Counter Claim, the matter cannot proceed any further before the learned Trial Court, especially as there was an Issue framed by the learned Trial Court qua the Counter Claim, which has been so filed by the defendants. He further submitted that learned Court below while framing the issues has committed a material irregularity by not taking into consideration the fact that no issue could have been framed with regard to the relief as was claimed by the Counter Claimants in the Counter Claim without formal issuance of notice to the plaintiff and providing him an opportunity to file his response to the same. Accordingly, he submitted that order dated 19.04.2017 be recalled and opportunity be granted to the plaintiff to file response/written statement to the Counter Claim and also lead evidence in support of the said contention. 8. On the other hand, learned counsel for the respondents has argued that the present petition is completely mis-conceived, because it is not as if the petitioner was not aware of the Counter Claim having been filed and in terms of the provisions of Order VIII, Rule 1 read with Order VIII, Rule 6-G of the Code of Civil Procedure, as no response to the Counter Claim was filed by the plaintiff within the time as is envisaged in the said provisions of the Code, the right to file response to the Counter Claim was deemed to have been closed. No other point was urged. 9. I have heard learned counsel for the parties and have also gone through the impugned order as well as the other documents appended with the petition and record of the case. 10. A perusal of the record of the learned Trial Court demonstrates that a Counter Claim was filed by the defendants before the learned Trial Court on 29.09.2016, on which date, learned Trial Court ordered the case to be listed on 29.11.2016, with a further direction for registration of the Counter Claim. 10. A perusal of the record of the learned Trial Court demonstrates that a Counter Claim was filed by the defendants before the learned Trial Court on 29.09.2016, on which date, learned Trial Court ordered the case to be listed on 29.11.2016, with a further direction for registration of the Counter Claim. However, thereafter, there is no order on record demonstrating that at any stage, notice of the said Counter Claim was issued by the learned Trial Court to the plaintiff and/or he was called upon to file response to the same. 11. Order VIII, Rule 6-A (3) of the Code of Civil Procedure provides that 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. In my considered view, a bare perusal of the said statutory provision demonstrates that it is for the Court to prescribe the period within which a written statement in answer to the Counter Claim has to be filed by the plaintiff. But of course, such period cannot be arbitrary and as to how much time prudently a Court should grant for the purpose of filing the written statement to the Counter Claim, the Court can be guided by the provisions of Order VIII, Rule 1 of the Code as also proviso to the said provision. But for that, first of all, the Court has to formally issue a notice of the Counter Claim to the plaintiff and thereafter call upon the plaintiff to file response to the same. 12. The contention of learned counsel for the respondents that in view of the provisions of Order VIII, Rule 1 read with Order VIII, Rule 6-G of the same, there is a deemed presumption that the time within which the response to the Counter Claim should have been filed, has elapsed, in my considered view, has no force. This I say for the following reasons: Order VIII, Rule 1 of the Code of Civil Procedure deals with with the Written Statement. The same, inter alia, provides that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. The period of 30 days, which has been fixed under Order VIII, Rule 1 commences from the date of service of summons upon the defendant. The same, inter alia, provides that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. The period of 30 days, which has been fixed under Order VIII, Rule 1 commences from the date of service of summons upon the defendant. Similarly, the provisio to the said Rule provides that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. The proviso also, in my considered view, clearly and categorically provides that the time for filing of the written statement in terms of the provisions of Order VIII, Rule 1 shall start as from the date when there is service of summons upon the defendant. Service of summons, but obvious means that notice of the case stands served upon the other party. Therefore, the first and foremost condition which has to be fulfilled before the provisions of Order VIII, Rule 1 as also the proviso thereto come into operation is issuance of notice and service of summons upon the other party. 13. Coming to the filing of the response to the Counter Claim, the Legislators, in their wisdom, provided for a specific provision in regard thereto, as is contained in Order VIII, Rule 6-A (3) of the Code. Therefore, in the presence of a specific provision under the Code of Civil Procedure itself dealing with the mode and manner in which response to the Counter Claim has to be filed, the provisions of Order VIII, Rule 1 of the Code cannot be permitted to be read into for the said purpose. 14. Similarly, as far as the provisions of Order VIII, Rule 6-G of the Code of Civil Procedure are concerned, the same are also of no help to the respondents. 15. Order VIII, Rule 6-G envisages that rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a Counter Claim. 14. Similarly, as far as the provisions of Order VIII, Rule 6-G of the Code of Civil Procedure are concerned, the same are also of no help to the respondents. 15. Order VIII, Rule 6-G envisages that rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a Counter Claim. By relying upon the said provisions of the Code of Civil Procedure, learned counsel for the respondents submits that interpretation of this particular provision is that Order VIII, Rule 1 of the Code shall govern within what period the response has to be filed by the plaintiff to the Counter Claim. In my considered view, this is not how this provision is to be read. Order VIII Rule 1A and Order VIII, Rules 2 & 3 provide as to how the written statement has to be filed and what is to be contained in the written statement. Order VIII, Rule 6-G has to be read harmoniously with Order VIII, Rule 1A and Order VIII, Rules 2 & 3, meaning thereby that the provisions which are contained in Order VIII Rule 1A and Order VIII, Rules 2 & 3 shall also apply to the written statement which is to be filed to the Counter Claim. However, in terms of Order VIII, Rule 6-A (3), the period within which a written statement to the Counter has to be filed by the plaintiff to the Counter Claim is to be decided by the Court and if the contention of respondents is to be accepted then the provisions of Order VIII, Rule 6-A (3) shall become otiose. 16. In view of the observations made hereinabove, this petition is allowed in the following terms: Plaintiff shall be given an opportunity to file response to the Counter Claim, which has been filed by the defendants. The time which shall be granted by the learned Trial Court to the plaintiff for the purpose of filing response/written statement to the Counter Claim be guided by the provisions of Order VIII, Rule 1 of the Code of Civil Procedure. In case the written statement to the Counter Claim is filed by the plaintiff within the time which shall be so granted by the learned Trial Court, then the learned Trial Court shall proceed with the matter in accordance with law. In case the written statement to the Counter Claim is filed by the plaintiff within the time which shall be so granted by the learned Trial Court, then the learned Trial Court shall proceed with the matter in accordance with law. In case no written statement is filed within the period so granted, then the learned Trial Court shall proceed with the matter by striking off the right of the plaintiff to file written statement to the Counter Claim. There is no need to interfere with the order vide which the issues stood framed by the learned Trial Court, as the issue qua the relief claimed in the Counter Claim has to be first proved by the Counter Claimants. Thereafter, plaintiff will get a chance to lead evidence in rebuttal. The relief granted in favour of the petitioner shall, of course, be subject to payment of cost of Rs.20,000/-, because admittedly there has been omission on the part of the plaintiff in the present case, who has not raised the point of non-service of summons upon him in the Counter Claim before the learned Trial Court at the appropriate stage, including the stage when the issues were framed. Learned Trial Court shall ensure that copy of the Counter Claim is duly made available to the plaintiff. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.