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2019 DIGILAW 747 (HP)

Vishwa Nath v. Rakesh Kumar

2019-06-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner for quashing and setting aside the impugned order, dated 21.8.2017, passed by the learned Civil Judge (Junior Division), Court No.2, Ghumarwin, District Bilaspur, in CMA No.437/6 of 2017, in Civil Suit No.248/1 of 2015, whereby an application filed by the petitioner seeking permission to file the counter claim was dismissed. 2. The key facts, giving rise to the present petition are that respondent No.1-plaintiff maintained a suit for permanent prohibitory injunction restraining the defendants from digging the land, raising any type of construction and from alienating the suit land in any manner. As per the plaintiff, late Smt. Prabhi, was recorded owner-in-possession over the land measuring 2-16 bighas, comprised in Khasra No.291/1, 294, kita 2, situated in village Bakain, Pargana Baseh, Tehsil Jhandutta, District Bilaspur, H.P. Smt. Prabhi, reported missing since so many years and the predecessor-in-interest of the defendant late Shri Ram Prakash by practicing the fraud with the revenue authorities have got the revenue entries in the column of possession in his name, however, Smt. Prabhi Devi, was exclusive owner-in-possession over the suit land and she has neither inducted late Shri Ram Prakash, predecessor-in-interest of the defendants as tenant nor any possession was over delivered to late Shri Ram Prakash by her in any manner and as such, revenue entries in the name of late Shri Ram Prakash predecessor-in-interest of the defendants and now in the name of defendants No.1 and 2 in the column of possession, vide mutation No.529, dated 24.4.2013, are illegal, wrong and null and void. The defendants and their predecessor-in-interest Shri Ram Prakash have got no right, title and interest in any manner in the suit land and other successor of Smt. Prabhi Devi is also having equal right and interest according to their respective shares in the suit land. 3. The petitioner-defendant No.1 maintained an application for seeking permission to file the counter claim in the civil suit, whereby the said application was dismissed, vide order dated 21.8.2017. 4. Feeling aggrieved, the impugned order, dated 21.8.2017, passed by the learned Trial Court, the petitioner maintained the present petition. 5. 3. The petitioner-defendant No.1 maintained an application for seeking permission to file the counter claim in the civil suit, whereby the said application was dismissed, vide order dated 21.8.2017. 4. Feeling aggrieved, the impugned order, dated 21.8.2017, passed by the learned Trial Court, the petitioner maintained the present petition. 5. Learned counsel appearing on behalf of the plaintiff has argued that the learned Court below should have allowed the applicant to file the counter claim as per the law laid down in Vijay Prakash Jarath vs. Tej Prakash Jarath, 2016 (11) SCC 800 . On the other hand, learned counsel appearing for the defendant has also relied upon the aforesaid judgment (supra) and argued that as the cause of action to the counter claim has accrued after filing of the written statement, so, the present petition cannot be allowed. 6. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 7. From the aforesaid discussion, as per the pleadings of the plaintiff, cause of action accrued to him on 1.5.2017, which has occurred to the defendant and can be taken on 1.5.2017. The written statement in the present case is filed on 10.3.2016. Now, coming to the provision of Order 8 Rule 6 (A) of the Code of Civil Procedure, the law as cited by the learned counsel appearing for the plaintiff in Vijay Prakash Jarath vs. Tej Prakash Jarath, 2016 (11) SCC 800 , wherein it has been held as under : “It is in these circumstances, that we advert to Order VIII Rule 6A of the Code of Civil Procedure, which is being reproduced below: "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 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. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any doubt, that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a written statement. The instant determination of ours is supported by the conclusions drawn in Bollepanda P. Poonacha & Anr vs. K.M. Madapa, wherein this Court observed as under: "11. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The respondent in his application for amendment of written statement categorically raised the plea that the appellants had tress-passed on the lands in question in the summer of 1998. Cause of action for filing the counterclaim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of Ryaz Ahmed is based on the decision of this Court in Baldev Singh Vs. Manohar Singh, 2006 (6) SCC 498 ." It is not a matter of dispute in the present case, that cause of action for which the counter-claim was filed in the present case, arose before the respondent-plaintiff filed the suit (out of which these petitions/appeals have arisen). It is therefore apparent that the appellants before this Court were well within their right to file the counter-claim.” 8. It is therefore apparent that the appellants before this Court were well within their right to file the counter-claim.” 8. In view of the aforesaid discussion, as the cause of action accrued to the defendant after filing of the written statement, so, in these circumstances, the impugned order dated 21.8.2017, passed by the learned Court below is just and reasoned and needs no interference. 9. In view of what has been stated hereinabove, the present petition sans merits, deserves dismissal and is accordingly dismissed. No order as to costs. Parties through their learned counsel are directed to appear before the learned Court below on 15th July, 2019. Pending application (s), if any, also stand (s) disposed of.