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2024 DIGILAW 598 (UTT)

Vivek Agarwal v. Vikram Agarwal

2024-09-13

ALOK KUMAR VERMA

body2024
JUDGMENT : Alok Kumar Verma, J. The challenge in the Revision, filed under Section 115 of the Code of Civil Procedure, 1908 (in short, “Code”), is to an order dated 24.12.2021, passed by learned IInd Additional Civil Judge (Senior Division), Dehradun in Original Suit No. 706 of 2003, “Vikram Agarwal Vs. Bank of Baroda and Others”, whereby, the written statement filed by the respondent no.1-plaintiff against the counter-claim of the revisionist-defendant no.7 has been permitted to be filed and taken on record subject to payment of costs of Rs.10,000/-. Hence, the present Revision. 2. The brief facts of the present case, which are necessary to notice for deciding the present Revision, are that in the original suit (O.S. No.706 of 2003), filed by the respondent no.1-plaintiff for declaration, cancellation of the registered lease deed dated 03.10.2003/17.10.2003, partition and compensation, the revisionist-defendant no.7 filed his written statement with counter-claim against the plaintiff on 31.05.2004 seeking the relief of cancellation of the registered sale-deed dated 13.05.2003, which was kept on the record. The trial court, while deciding the issue no.11 on 02.01.2019, directed the revisionist-defendant no.7 to make good the deficiency in court fee to be paid on the counter-claim. The defendant no.7 paid the outstanding court fee on 30.01.2020. 3. It is not in dispute that the trial court never fixed any period in view of sub-rule (3) of Rule 6A of Order VIII of the Code to file written statement against the counter-claim of the defendant no.7. The written statement against the counter-claim was filed on 03.12.2021. 4. Heard Mr. Ramji Shrivastava, learned counsel for revisionist and Mr. Neeraj Garg, learned counsel for respondent no.1-plaintiff. 5. Mr. Ramji Srivastava, Advocate, appearing for revisionist-defendant no.7, has contended that the revisionist-defendant no.7 had filed his counter-claim on 31.05.2004, whereas the respondent no.1-plaintiff has filed his written statement against the revisionist’s counter-claim on 03.12.2021 without assigning any sufficient reason for condoning the delay in filing the written statement. Therefore, the laxity and gross negligence on the part of the plaintiff in filing the written statement against the counter-claim should not have been condoned. 6. Mr. Ramji Shrivastava, Advocate, has relied upon sub-rule (4) of Rule 6 A, Rule 6 G of Order VIII of the Code and the judgments of the Hon’ble Supreme Court, passed in “Aditya Hotels (P) Limited Vs. 6. Mr. Ramji Shrivastava, Advocate, has relied upon sub-rule (4) of Rule 6 A, Rule 6 G of Order VIII of the Code and the judgments of the Hon’ble Supreme Court, passed in “Aditya Hotels (P) Limited Vs. Bombay Swadeshi Stores Limited and Others, (2007) 14 SCC 431 ”, “SCG Contracts (India) Private Limited Vs. K.S. Chamankar Infrastructure Private Limited and Others, (2019) 12 SCC 210 ” and upon a judgment dated 24.09.2020, passed by the Hon’ble High Court of judicature at Bombay Nagpur Bench, Nagpur in Writ Petition No.7061 of 2019, “Gunwantiben Kishorchandra Shan and Others Vs. Smt. Manjulaben Indukumar Ghiya”. 7. Mr. Neeraj Garg, Advocate, appearing for the respondent no.1-plaintiff, on the other hand, has argued that the revisionist-defendant no.7 filed his written statement with counter-claim on 31.05.2004 which was kept on the record of the original suit. On 02.01.2019, the trial court directed the revisionist-defendant no.7 to make good the deficiency in court fee to be paid on the counter-claim. The deficiency in counter-claim was removed on 30.01.2020. 8. The written statement was filed by the respondent no.1-plaintiff against the counter-claim on 03.12.2021. Mr. Neeraj Garg, Advocate, argued that the trial court never fixed any period under sub-rule (3) of Rule 6 A of Order VIII of the Code for the respondent no.1-plaintiff to file written statement against the counter-claim filed by the revisionist-defendant no.7. Therefore, the trial court has permitted the respondent no.1-plaintiff on 24.12.2021 to file the written statement against the counter-claim of the revisionist-defendant no.7, in which there is no illegality. The order dated 24.12.2021 is legal and proper. He has relied upon the judgment of the Hon’ble High Court of Karnataka at Bengaluru, passed in “Sri. Dora Babu Vs. Sri C.V. Jagadish, (2017) 2 AIR (Kar)(R)728” and the judgment of the Hon’ble High Court of Rajasthan (Jaipur Bench), passed in “Nirottam Sharma Vs. Ramkishore, (2018) 0 Supreme (Raj) 1273”. 9. Before proceeding further, it would be appropriate to refer to Rule 6 A, Rule 6 E and Rule 6 G of Order VIII of the Code, which read as under:- “6A. Ramkishore, (2018) 0 Supreme (Raj) 1273”. 9. Before proceeding further, it would be appropriate to refer to Rule 6 A, Rule 6 E and Rule 6 G of Order VIII of the Code, which read as under:- “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. 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. 6G. Rules relating to written statement to apply.— The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.” 10. A counter-claim is substantially a cross-action, not merely a defence to the plaintiff’s claim and is governed by rules applicable to the plaint. It is well recognized that in view of Order VIII Rule 6A (4) of the Code, a counter-claim is a virtually a plaint and an independent suit. The effect of Rule 6G of the Code is that written statement in answer to a counter-claim is governed by the same rules of pleading as a written statement by the defendant. 11. It is well recognized that in view of Order VIII Rule 6A (4) of the Code, a counter-claim is a virtually a plaint and an independent suit. The effect of Rule 6G of the Code is that written statement in answer to a counter-claim is governed by the same rules of pleading as a written statement by the defendant. 11. In Aditya Hotels (P) Limited (Supra), the challenge was to the order passed by High Court dismissing the writ petition filed by the appellant holding that the order passed by the trial court was a discretionary one. The trial court by its order dated 09.09.2005 granted permission to the respondents to file written statement subject to payment of costs of Rs.2,000/-. The said order was passed in a civil suit by the Small Cause Judge. The written statement was accepted after the expiry of the time fixed but no reason was indicated to justify the acceptance of the written statement after the expiry of the time fixed. Therefore, the Hon’ble Supreme Court set aside the orders of the trial court and that of the High Court and the matter was remitted to the trial court to consider the matter afresh in the light of what has been stated in the case of “Kailash vs. Nanhku (2005) 4 SCC 480 . SCG Contracts (India) Private Limited (Supra) is also related to the written statement of the defendant. 12. As per the case of the Writ Petition No.7061 of 2019 (Supra), a suit was filed by the petitioners way-back in the year, 2014. The case was not really proceeded much, because of the approach adopted by the respondent. The repeated applications for adjournment were submitted on behalf of the respondent before the trial court and there was no effort made to file written statement. As a result, on 28.03.2016, the trial court passed an order that the suit would proceed without written statement. The said order was not challenged. Instead, the respondent filed an application under Order VII Rule 11 of the Code, which was not only dismissed by the trial court, but, the writ petition filed before the High Court challenging the said order was also dismissed. Thereafter, an application was filed by the defendant seeking permission to file written statement. The said application was allowed on 12.07.2019. Instead, the respondent filed an application under Order VII Rule 11 of the Code, which was not only dismissed by the trial court, but, the writ petition filed before the High Court challenging the said order was also dismissed. Thereafter, an application was filed by the defendant seeking permission to file written statement. The said application was allowed on 12.07.2019. In the said backdrop, the Hon’ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur has observed that the laxity and gross negligence on the part of the defendant in filing the written statement should not have been condoned. 13. In the considered opinion of this Court, the reliance placed on the above-mentioned judgments by the revisionist do not render any assistance. The law laid down in the said judgments rests on the facts depicted therein. 14. In “Nirottam Sharma (Supra), relied upon by the respondents, the Hon’ble High Court of Rajasthan (Jaipur Bench) observed that the default as mentioned in Rule 6E would apply only when time has been laid down by the Court to file reply. The Court has not given time to plaintiff to file reply to the counter-claim and therefore, it cannot be said that the default would lie on the part of the plaintiff. The Court was duly bound to give time to the plaintiff in terms of Order 6A(3) and if the plaintiff had not filed his reply within that time, Order VIII Rule 6E would have come into operation. 15. In “Sri Dora Babu (Supra), relied upon by the respondents, the Hon’ble High Court of Karnataka At Bengaluru, has held that before a written statement to a counter-claim is to be filed by a plaintiff the Court must formally take on record the counter-claim by passing an order thereon and pass an order fixing the date for filing the written statement to the counter-claim by the plaintiff. 16. After considering the respective submissions, this Court is inclined to agree with the judgment passed by the Hon’ble High Court of Rajasthan (Jaipur Bench) in the case of Nirottam Sharma (Supra) and the judgment passed by the Hon’ble High Court of Karnataka At Bengaluru in the case of Sri Dora Babu (Supra). I am of the considered view that the learned trial court is well justified in passing the impugned order. I do not find any illegality or infirmity in the said order. 17. I am of the considered view that the learned trial court is well justified in passing the impugned order. I do not find any illegality or infirmity in the said order. 17. Consequently, the present Civil Revision (CLR No.23 of 2022) stands dismissed. However, there is no order as to costs. 18. The original suit is pending since 2003, therefore, the Trial Court shall make every endeavour to dispose of the suit expeditiously without granting any unnecessary adjournment to the parties.