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2024 DIGILAW 735 (MP)

Manoj Kumar Gupta v. Santosh Kumar Gupta

2024-11-27

SANJAY DWIVEDI

body2024
ORDER 1. By the instant petition filed under Article 227 of the Constitution of India, the petitioner is challenging the validity of order dated 24.5.2024 (Annexure-P/5) passed by the Court of First Civil Judge Senior Division, Katni, whereby the trial Court has rejected the petitioner’s application preferred under Order 6 rule 17 of the Code of Civil Procedure [hereinafter referred to as ‘C.P.C.’]. 2. The plaintiff/respondent has filed a suit for eviction so also for recovery of arrears of rent under the provisions of section 12 of the M.P. Accommodation Control Act, 1961 [hereinafter referred to as ‘the Act, 1961’]. Though the defendant/petitioner had filed written statement on 15.9.2019, but thereafter on 8.12.2021, he had filed an application under Order 6 rule 17 of the C.P.C. seeking permission to file a counterclaim in respect of recovery of an amount of Rs.22,00,000/- which he had spent over the renovation of rented premises, and therefore, he had claimed that not only the amount of arrears of rent be adjusted in the same, but the remaining amount be also paid to him. In turn, the trial Court has rejected the application saying that the counterclaim is barred by time as it could have been filed as per the limitation prescribed under Order 8 rule 6 of the C.P.C. that too at the time of filing of written statement. According to the trial Court, it is a suit for recovery of amount and Order 8 rule 1 of the C.P.C. very clearly provides a period of 90 days for filing the written statement from the date of serving the notice of plaint, therefore, the counterclaim filed by the defendant, according to the trial Court, was held to be barred by time. 3. Learned counsel for the petitioner has submitted that though limitation for set-off has been prescribed under Order 8 rule 6 of the C.P.C., but no limitation for filing a counterclaim is prescribed under Rule 6(a). 3. Learned counsel for the petitioner has submitted that though limitation for set-off has been prescribed under Order 8 rule 6 of the C.P.C., but no limitation for filing a counterclaim is prescribed under Rule 6(a). He has also submitted that even otherwise for filing a counterclaim, the limitation starts from the date of filing the suit because in the written statement filed by the respondent, he has very specifically pleaded about the amount spent over the renovation of rented premises and, therefore, the cause of action as has been shown for filing the counterclaim starts from the date of filing the suit i.e.12.10.2018 and even otherwise, the limitation for filing the suit of recovery is three years, the counterclaim was well within the limitation and as such, the impugned order passed by the trial Court is liable to be set-aside. 4. Learned counsel for the petitioner has also submitted that so far as the set-off is concerned, the defendant can raise a set-off under Order 8 rule 6 of the C.P.C. within the limit of amount which was claimed to be recovered by the plaintiff in the plaint, but the amount of Rs.22,00,000/- was exceeding to the said limit, therefore, the defendant was required to file a counterclaim and the set-off could not be claimed seeking recovery of the amount which exceeds the amount claimed by the plaintiff to be recovered. In support of his stand, learned counsel for the petitioner has placed reliance upon the cases reported in AIR 2016 SC 1304 [Vijay Prakash Jarath v. Tej Prakash Jarath], 2022 LiveLaw (SC) 729 [Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another] and also 2017 (3) M.P.L.J. 717 [Chakreshwari Construction Pvt. Ltd. v. Manohar Lal]. 5. In support of his stand, learned counsel for the petitioner has placed reliance upon the cases reported in AIR 2016 SC 1304 [Vijay Prakash Jarath v. Tej Prakash Jarath], 2022 LiveLaw (SC) 729 [Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another] and also 2017 (3) M.P.L.J. 717 [Chakreshwari Construction Pvt. Ltd. v. Manohar Lal]. 5. On the other hand, learned senior counsel for the respondent supporting the impugned order passed by the trial Court, has submitted that limitation for filing the counterclaim has also been prescribed under Order 8 rule 6(a) of the C.P.C. He has also submitted that the limitation of 90 days for filing the written statement is prescribed under Order 8 rule 1 of the C.P.C. and counterclaim should have been filed within the said period, but the written statement was filed by the defendant without raising the counterclaim and that has been raised later after filing the written statement, as such, the trial Court has rightly rejected the same holding that the application is barred by time. It is next submitted that while rejecting the application, the trial Court did nothing wrong and according to him, the impugned order under the existing scenario, does not call for any interference. It is submitted that recovery of an amount of Rs.22,00,000/- cannot be raised by way of set-off because it is otherwise a suit for recovery and limitation for filing the set-off is prescribed under the law, as such, the trial Court has rightly passed the impugned order. To give strength to his submissions, learned senior counsel has placed reliance upon paragraph-9 of the decision passed in the case of Vijay Prakash Jarath (supra). 6. Considering the submissions made by learned counsel for the parties and perusal of record, I am of the opinion that the issue involved in this case is that as to whether the counterclaim of set-off filed by the defendant/petitioner has rightly been rejected by the Court on the ground of limitation or not. The Supreme Court in the case of Vijay Prakash Jarath (supra), in paragraph-9, has observed that :-- “9. The Supreme Court in the case of Vijay Prakash Jarath (supra), in paragraph-9, has observed that :-- “9. It is quite apparent from the factual position noticed hereinabove, that after the issues were framed on 18.10.1993, the counterclaim was filed by the appellants before this Court (i.e. by defendant Nos.3 and 4 before the trial Court) almost two and a half years after the framing of the issues. Having given our thoughtful consideration to the provisions relating to the filing of counterclaim, we are satisfied, that there was no justification whatsoever for the High Court to have declined, the appellant before this Court from filing his counterclaim on 17.6.1996, specially because, it is not a matter of dispute, that the cause of action, on the basis of which the counterclaim was filed by defendants No.3 and 4, accrued before their written statement was filed on 11.11.1992. In the present case, the respondent-plaintiff's evidence was still being recorded by the trial Court, when the counterclaim was filed. It has also not been shown to us, that any prejudice would be caused to the respondent-plaintiff before the trial Court, if the counterclaim was to be adjudicated upon, along with the main suit. We are of the view, that no serious injustice or irreparable loss (as expressed in paragraph 15 of Bollepanda P.Pooncha's case), would be suffered by the respondent-plaintiff in this case.” 7. Further, the decision passed in the case of Chakreshwari Construction Pvt. Ltd. (supra), although it does not deal with the issue involved in the present case, but it deals with the issue regarding amendment in pleading and it provides that amendment can be made at any stage not only during the pendency of the trial but also at first and second appeal stage if it appears to be bona fide, relevant and necessary for deciding the rights of the parties involved in lis. 8. Also, in the case of Sanjeev Builders Private Limited (supra), the Supreme Court has dealt with the issue with regard to making an amendment and limitation for allowing the application for amendment filed under Order 6 rule 17 of the C.P.C. and reiterated that the amendment can be made at any stage subject to leave of the Court. However, the issue involved in the case has been considered by the Supreme Court in the case of Ashok Kumar Kalra v. Wing CDR. However, the issue involved in the case has been considered by the Supreme Court in the case of Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri and Others reported in (2020) 2 SCC 394 , wherein the Supreme Court has also considered the judgment of Vijay Prakash Jarath (supra), answering the reference made to the Constitutional Bench consisting of three Judges, the Supreme Court considered the following aspect and the reference made to it :-- “2. The present reference placed before us arises out of the order dated 10.9.2018 passed by a two-Judge Bench of this Court, wherein clarification has been sought as to the interpretation of Order 8 rule 6-A of the Civil Procedure Code (hereinafter referred to as “CPC”), regarding the filing of counterclaim by a defendant in a suit. The reference order dated 10.9.2018 is extracted below : “3. The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three-Judge Bench to look into the effect of our previous judgments as well as whether the language of Order 8 rule 6-A of the Civil Procedure Code is mandatory in nature.” (Emphasis supplied)” 9. In the case of Ashok Kumar Kalra (supra), the Supreme Court considering the earlier judgment passed in the case of Vijay Prakash Jarath (supra), has observed that :-- “16. In Vijay Prakash Jarath v. Tej Prakash Jarath, this Court directed the Court below to entertain the counterclaim which was filed 2½ years after framing of issues, as the evidence was still pending and this Court felt that no prejudice would be caused to the plaintiff. However, in Bollepanda P. Poonacha v. K.M. Madapa (hereinafter referred as ‘Bollepanda Poonacha Case’), this Court while referring to Ramesh Chand Ardawatiya v. Anil Panjwani, discouraged the belated filing of counterclaims. Further, the Court elucidated on the serious harm caused by allowing such delayed filing. In any case, in Bollepanda P. Poonacha, the Court could not expound any further as the counterclaim was rejected on the basis that the cause of action had arisen after the filing of the written statement. 17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. 17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 rule 6-A. Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time-barred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order 8 rule 6-A.” and answered the reference in the following manner :-- “19. In this regard having clarified the law, we may note that the Mahendra Kumar Case (supra), needs to be understood and restricted to the facts of that case. We may note that even if a counterclaim is filed within the limitation period, the trial Court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. The discretion vested with the trial Court to ascertain the maintainability of the counterclaim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting a counterclaim. 20. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognize the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well (refer to Salem Advocate Bar Association Case). 21. This Court needs to recognize the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well (refer to Salem Advocate Bar Association Case). 21. We sum up our findings, that Order 8 rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The Court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The Court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: (i) Period of delay. (ii) Prescribed limitation period for the cause of action pleaded. (iii) Reason for the delay. (iv) Defendant’s assertion of his right. (v) Similarity of cause of action between the main suit and the counterclaim. (vi) Cost of fresh litigation. (vii) Injustice and abuse of process. (viii) Prejudice to the opposite party. (ix) And facts and circumstances of each case. (x) In any case, not after framing of the issues.” 10.Although, one of the Judges of the Constitutional Bench, partly dissenting, has supplemented his view in the following manner :-- “30. It is clear that rule 6A(1) only places a limitation on the time within which the cause of action for a counterclaim must arise. Besides this limitation, there is no explicit guidance in rule 6A(1) as to the time within which the counterclaim itself must be filed. In this respect, Rule 6A(4) provides that a counterclaim is governed by the rules applicable to plaints. It is well established that a plaint must be presented within the period prescribed under the Limitation Act, 1963 [hereinafter “the Limitation Act”]. For counterclaims as well, the period within which they must be filed can be inferred from section 3(2)(b)(ii) of the Limitation Act, 1963, which states thus : “3. It is well established that a plaint must be presented within the period prescribed under the Limitation Act, 1963 [hereinafter “the Limitation Act”]. For counterclaims as well, the period within which they must be filed can be inferred from section 3(2)(b)(ii) of the Limitation Act, 1963, which states thus : “3. (2) For the purposes of this Act— (b) any claim by way of a set off or a counterclaim, shall be treated as a separate suit and shall be deemed to have been instituted— (ii) in the case of a counterclaim, on the date on which the counterclaim is made in Court;” (Emphasis supplied) This provision mandates that in order to determine the limitation period applicable to a counterclaim, it must be treated as a separate suit, which is deemed to have been instituted on the date on which it is made in Court. Thus, evidently, in consonance with the provisions of Order 8 Rule 6-A(4), the Limitation Act also treats a counterclaim like a plaint. This means that much like a plaint, the limitation for filing a counterclaim also depends on the nature of the claim and is accordingly governed by the period of limitation stipulated in the Limitation Act. xxxxxxxxx 57. At the same time, in exceptional circumstances, to prevent multiplicity of proceedings and a situation of effective re-trial, the Court may entertain a counterclaim even after the framing of issues, so long as the Court has not started recording the evidence. This is because there is no significant development in the legal proceedings during the intervening period between framing of issues and commencement of recording of evidence. If a counterclaim is brought during such period, a new issue can still be framed by the Court, if needed, and evidence can be recorded accordingly, without seriously prejudicing the rights of either party to the suit. xxxxxxxxx 59. There are several considerations that must be borne in mind while allowing the filing of a belated counterclaim : 59.1. First, the Court must consider that no injustice or irreparable loss is being caused to the defendant due to a refusal to entertain the counterclaim, or to the plaintiff by allowing the same. Of course, as the defendant would have the option to pursue his cause of action in a separate suit, the question of prejudice to the defendant would ordinarily not arise. 59.2. Of course, as the defendant would have the option to pursue his cause of action in a separate suit, the question of prejudice to the defendant would ordinarily not arise. 59.2. Second, the interest of justice must be given utmost importance and procedure should not outweigh substantive justice. 59.3. Third, the specific objectives of reducing multiplicity of litigation and ensuring speedy trials underlying the provisions for counterclaims, must be accorded due consideration. 60. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The Court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counter claim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff. (Emphasis supplied)” 11. Thus, in view of the aforesaid, it is clear that considering the judgments of the Supreme Court and the facts of the present case, when parties undisputably apprised this Court that plaintiff’s evidence is yet to be started and no prejudice would cause to the party if counterclaim is allowed, therefore, in the interest of justice, the order passed by the trial Court, in the opinion of this Court, is not sustainable because the Court has not considered the legal position in appropriate manner and wrongly observed that the counterclaim has been filed beyond the period of limitation, as such, the impugned order dated 24.5.2024 is hereby set-aside. The application filed by the defendant/petitioner under Order 6 rule 17 of the C.P.C. is hereby allowed. 12.The trial Court is directed to permit the defendant/petitioner to carry-out the necessary amendments in the plaint and then proceed further in the pending civil suit and decide the same expeditiously. 13.With the aforesaid, the petition stands allowed and disposed of.