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2019 DIGILAW 92 (JK)

Sham Lal v. Ramesh Kumar

2019-02-25

DHIRAJ SINGH THAKUR

body2019
Judgment 01. This is a petition under Section 104 of the State Constitution read with Section 227 of the Constitution of India against the order dated 01.06.2017, passed by the Court of learned Munsiff (JMIC) Katra, whereby the respondents/defendants were allowed to file counter-claims. Order dated 31.10.2017 passed by the Court is also challenged whereby the review petition filed, in terms of Order 47 of the Civil Procedure Code, seeking review of the order dated 01.06.2017 has been dismissed. 02. Briefly stated, the material facts are as under:- 03. A civil suit came to be filed on 24.02.2015 challenging the trust-deed dated 19.01.2015 registered on 20.01.2015 challenged in the Court of learned Munsiff, Katra by the plaintiff/petitioners herein. Written statement to the said suit was filed by the defendants/ respondents herein in the said Court. However, subsequently, the defendants/respondents herein also filed a civil suit before the Court of learned Principal District & Sessions Judge, Reasi, seeking a declaration declaring trust-deed dated 09.09.2013 inter alia as null and void and ineffective. 04. It appears from the record that an application was filed by the petitioners herein under Section 10 of the Civil Procedure Code, seeking stay of suit before the learned District Judge, Reasi on the ground that the matter in issue in the District Court was directly and substantially in issue in the Court of learned Munsiff, Katra. The learned District Judge by virtue of order dated 02.06.2016 allowed the application and stayed the proceedings filed in the suit before the Munsiff, Katra. The learned District while staying the proceedings had observed that the respondents herein could have appropriately filed counter-claims before the Court below. 05. Pursuant to the order passed by the learned District Judge, Reasi, an application in terms of Order 8 Rule 6A was preferred before the learned Munsiff, Katra, seeking permission to file the counter-claims. Objections to the said application were filed in which one of the grounds taken that time barred counter-claims could not be permitted to raised. The Court below by virtue of order dated 01.06.2017 however, allowed the application by holding that the counter-claims sought to be raised were required to be permitted with a view to determine the rights of the parties and also for the just disposal of the case. 06. The Court below by virtue of order dated 01.06.2017 however, allowed the application by holding that the counter-claims sought to be raised were required to be permitted with a view to determine the rights of the parties and also for the just disposal of the case. 06. It appears that a review petition was filed by the petitioners herein (plaintiffs before the learned Munsiff, Katra), seeking review of the judgment and order dated 01.06.2017. The said review petition also was dismissed by virtue of order dated 31.10.2017. Learned counsel for the petitioners is aggrieved of the order dated 01.06.2017 as also the judgment and order dated 31.10.2017. It was urged that the Court below had failed to appreciate that allowing the counter-claims to be raised before the Court below would lead to a contradiction in terms, inasmuch as, in the eventuality of the suit filed by the petitioners herein before the Court below getting dismissed, the suit filed by the respondents before the District Court at Reasi would get revived, inasmuch as, the proceedings before the District Court, Reasi had only been stayed. It was thus urged that in those circumstances, while the counter-claims which are now permitted to be raised by the learned Munsiff, Katra would proceed, the proceedings before the learned District Judge, Reasi would also get revived and would ultimately lead to conflict of decrees. 07. The second argument urged was that the application filed, in terms of Order 8 Rule 6A was also impermissible, inasmuch as, the same had been filed much beyond the stage of filing of the written statement by the respondents, who were defendants before the learned Munsiff, Katra. 08. The third argument urged was that the Court below while permitting the application under Order 8 Rule 6A infact appeared to be acting under the command of the learned District Judge, Reasi while misconstruing the order dated 01.06.2017 passed by the learned District Judge, which had only envisaged that the plaintiff before the District Court could have raised counter-claims before the court of learned Munsiff, Katra. 09. Mr. Raina, learned Sr. Advocate appearing on behalf of the respondents on the other hand, defended the orders passed by the Court below and urged that the orders permitting filing of counter-claims were well within the jurisdiction of the Court below and that there was no perversity in the exercise of such powers. 09. Mr. Raina, learned Sr. Advocate appearing on behalf of the respondents on the other hand, defended the orders passed by the Court below and urged that the orders permitting filing of counter-claims were well within the jurisdiction of the Court below and that there was no perversity in the exercise of such powers. It was urged that in the guise of invoking the supervisory jurisdiction, infact the petitioners herein were seeking yet again a review of the order despite there being no perversity in the orders impugned, much less any failure to exercise jurisdiction on the part of the Court below. 10. Heard learned counsel for the parties. 11. On a perusal of the order passed by the learned District Judge, Reasi, it is clear that the Court did observe that the respondents herein (plaintiffs before the District Court) could have filed an application in terms of Order 8 Rule 6A for raising counter-claims. On a perusal of the order impugned dated 01.06.2017, it does not appear that the learned Munsiff, Katra was acting as if, there was a command from learned District Judge to allow the application, however, on a perusal of the order impugned it appears that the relevant provisions of Order 8 Rule 6-A had been duly referred to by the Court below. 12. It also appears that the learned Munsiff, Katra had allowed the application with a view to determine the rights of the parties in the right context for the just disposal of the suit. The argument that the learned Munsiff had acted in a mechanical manner as if to obey the order of learned District Judge dated 01.06.2017, therefore, appears to be an argument, which is without any basis. 13. The second point that was urged was that the application filed by the defendants/respondents herein could not have been allowed, inasmuch as, the same were time barred, having been filed subsequent to the filing of the written statement. Although, an objection to that extent appears to have been raised by the petitioners before the Court below, the same does not appear to have been urged before the learned Munsiff, Katra, as that argument is not reflected at all in the order impugned. The said argument also does not appear to have been raised at the time of filing of the review petition by the petitioners. 14. The said argument also does not appear to have been raised at the time of filing of the review petition by the petitioners. 14. In any case, it is a settled law that a plea for filing a counter-claims can be permitted with the leave of the Court even subsequent to the filing of the written statement. Reference in this regard can be made to Mahendra Kumar and another Vs State of Madhya Pradesh and others ( AIR 1987 SC 1395 ). The view was reiterated in Ramesh Chand Ardawatiya Vs Anil Panjwani ( 2003 7 SCC 350 ), whereby the Supreme Court has considered the scope and ambit of Rule 6A of Order 8 and held thus:— “28. Looking to the scheme of Order 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-claims in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claims which in the light of Rule 1 read with Rule 6-A would be a counter-claims against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claims may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claims may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claims though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 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-claims 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. The purpose of the provision enabling filing of a counter-claims 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-claims either by way of amendment or by way of subsequent pleading would 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-claims. The framers of the law never intended the pleading by way of counter-claims 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-claims 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-claims is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claims was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claims being introduced by way of amendment; for there is no written statement available to include a counter-claims therein. Equally there would be no question of a counter-claims 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-claims filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claims may not prejudice the defendant because in spite of the counter-claims 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.” 15. A refusal on the part of the Court to entertain a belated counter-claims may not prejudice the defendant because in spite of the counter-claims 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.” 15. Testing the facts of the present case on the touchstone of the judgments aforementioned, it cannot be said that in no case could counter claims were permitted to be filed after the filing of the written statement, as they had been permitted duly by the Court below on an application having been preferred in that regard. 16. The third point that was urged was that in the event of the suit of the plaintiffs getting dismissed, the proceedings, which had been stayed by the learned District Judge, Reasi in the suit filed by the defendants/respondents herein would get revived, in which eventuality the counter-claims filed by the respondents/ defendants as also the suit filed by them before the District Court would get revived. 17. I am not inclined to accept this argument at this stage, inasmuch as, it is absolutely premature. As at present, the proceedings in the civil suit before the District Court have been stayed and there is no bar for the Court below to proceed in the matter to determine conclusively the rights and entitlements of the parties to the suit. 18. Be that as it may, in my opinion, there is no perversity in the impugned orders, neither is a failure to exercise jurisdiction in the Court below. 19. Be that as it may, this petition is found to be without any merit and is, accordingly, dismissed along with connected IA.