Full Judgment Text
WP/8001/2014
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8001 OF 2014
1. Pradeep Kashinathrao Kalyankar,
Age 54 years, Occ. Service
R/o Mangalwarpeth, Kaij,
District Beed.
2. Sow. Pramila Pradeep Kalyankar,
Age 54 years, Occ. Service
R/o Mangalwarpeth, Kaij,
District Beed. ..Petitioners
Versus
1. Pramod Kashinathrao Kalyankar,
Age 50 years, Occ. Business,
R/o Mangalwarpeth, Kaij,
District Beed.
2. Sumitra Pramod Kalyankar,
Age 45 years, Occ. Household,
R/o Mangalwarpeth, Kaij,
District Beed. ..Respondents
...
Advocate for Petitioners : Shri Shinde Prakash M.
Advocate for Respondents 1 & 2 : Shri Salunke M.V.
h/f Shri Salunke V.D.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 19, 2017
...
ORAL JUDGMENT :
1. Heard learned Advocates for the respective parties.
2. Rule.
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3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioners / plaintiffs are aggrieved by the order
dated 27.8.2015, passed by the trial Court, by which, application
Exhibit 136 seeking permission of the Court to file a counter
claim / cross suit has been allowed and the plaintiffs have been
permitted to file their written statement.
5. Shri Shinde, learned Advocate for the petitioners
strenuously submits that they have filed RCS No. 136 of 2013 for
seeking declaration of ownership and perpetual injunction. On
19.3.2013, a written partition deed was drawn on the basis of a
will. The said partition deed was verified before the Notary on
25.3.2013. Since a mutation entry was not being taken by the
Tahsildar on the basis of the partition deed, the petitioners
preferred RCS No.136 of 2013 on 25.5.2013. The respondents /
defendants filed the written statement on 13.8.2013 and the
counter claim which is the subject matter at issue, was filed on
24.2.2014 along with the application Exhibit 34, seeking
permission to register the complaint. These dates and sequence
of events are not disputed.
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6. The issue is as to whether the defendants have filed the
counter claim strictly in accordance with Order VIII Rule 6A of
the Code of Civil Procedure ("CPC"). For reference, Order VIII
Rule 6A of the CPC is reproduced 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 to 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.”
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7. Considering the above provisions, the issue is as to
whether the cause of action arose before the filing of the suit or
after the filing of the suit and before the filing of the Written
Statement of the defendant.
8. The plaintiffs contend on the basis of paragraph No.8 of
the counter claim dated 24.2.2014, that the cause of action arose
on 8.2.2014 and which is much after the filing of the written
statement on 13.8.2013. Reliance is placed upon the judgment of
the Honourable Apex Court in the matter of Vijay Prakash Jarath
Vs. Tej Prakash Jarath [(2016) 11 SCC 800]. Shri Shinde has
specifically relied upon paragraph No.9 of the said judgment,
which reads as under:
“9. A perusal of Subclause (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 (supra), wherein this Court observed as under:
“11. The provision of Order 8 Rule 6A must be
considered having regard to the aforementioned
provisions. A right to file counterclaim is an
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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 trespassed 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 Singh [(2006) 6 SCC 498].”
(emphasis is ours)
It is not a matter of dispute in the present case, that
cause of action for which the counterclaim was filed in the
present case, arose before the respondentplaintiff 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 counterclaim.”
9. It is, therefore, contended that considering the law laid
down in the case of Vijay Prakash (supra) and Bollepanda
(supra), a counter claim in relation to a cause of action which
has arisen after the filing of the written statement cannot be
permitted. I have no reason to reject the contention of Shri
Shinde since that is based on Rule 6A and in the light of settled
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law. However, the contention of Shri Shinde needs to be
scrutinized in the light of what has been pleaded by the
defendants in their counter claim and as to what are the prayers
put forth in the counter claim, which essentially constitute the
cause of action.
10. In paragraph No.8 of the counter claim, the defendants
have stated that the plaintiffs were assuring them that the matter
would be settled and the suit would be resolved. Therefore, the
defendants did not challenge the temporary injunction granted
by the trial Court under Order XXXIX Rule 1 of the CPC on
16.11.2013 and hence an appeal was not filed. It is then stated
that the plaintiffs resiled from their oral assurance and did not
withdraw the suit and finally declared on 8.2.2014 that they are
not going to withdraw the suit. Therefore, the counter claim has
been filed. In paragraph No.9, it is further stated that the
plaintiffs threatened the defendants on 16.2.2014 and hence
they decided to file the counter claim.
11. The above narration does not speak about what is the
claim that is being putforth by the defendants in their counter
claim. It speaks about the circumstances in which the defendants
did not challenge the temporary injunction order and the
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circumstances in which, they were left with no choice but to file
a counter claim.
12. In so far as the cause of action and the prayer putforth in
the counter claim are concerned, the defendants have narrated in
paragraph No.6 that blank stamp papers bearing signatures were
utilized by the plaintiffs for preparation of a ‘smaran patra’ of the
‘watani patra’ on 31.12.2012 and 19.3.2013. These two
documents, which pertain to indicating a reminder about the
partition deed is neither notarized nor is registered. The said
documents dated 31.12.2012 and 19.3.2013 are bogus
documents. This is the cause of action in the counter claim.
13. The defendants have then putforth a specific prayer at
clause (B), which reads as under:
“ It may kindly be declared that alleged documents
brought into existence by original plaintiffs styled as
Partition deed and Smaran patra of the partition deed dated
31.12.2012 and 19.3.2013 respectively to be fraudulent,
bogus, unauthorized and not binding upon the present
counter claimants / original defendants.”
14. It is, therefore, obvious that the prayer in the counter
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claim is that the ‘smaran patra’ of the partition deed dated
31.12.2012 and 19.3.2013 be declared as being fraudulent,
bogus, unauthorized and not binding upon the defendants. It,
therefore, establishes that the cause of action is 31.12.2012 and
19.3.2013.
15. In the case of Vijay Prakash (supra), the Honourable
Supreme Court, based on the facts of the case, has concluded
that though two and half years have lapsed after the framing of
the issues, as the cause of action set out in the counter claim has
arisen before the written statement was filed, the counter claim
could be permitted even at the stage when recording of evidence
was half way through. Observations of the Honourable Apex
Court in paragraph Nos.10 to 13 read as under:
“10. It is quite apparent from the factual position noticed
hereinabove, that after the issues were framed on
18.10.1993, the counter claim 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 counter claim, we are
satisfied, that there was no justification whatsoever for the
High Court to have declined, the appellant before this Court
from filing his counter claim on 17.06.1996, specially
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because, it is not a matter of dispute, that the cause of
action, on the basis of which the counter claim was filed by
defendant Nos.3 and 4, accrued before their written
statement was filed on 11.11.1992. In the present case, the
respondentplaintiff'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 respondentplaintiff before the trial court, if the counter
claim 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.
11. For the reasons recorded hereinabove, we set aside
the impugned order passed by the High Court dated
02.01.2008, and restore the order passed by the trial court
dated 28.10.1996.
12. The appeals are allowed in the above terms.
13. Needless to mention, that it shall be open to the
respondent plaintiff to raise all pleas open to him through
the written statement which is filed by the respondent
plaintiff, to the counter claim.”
16. The Honourable Apex Court in the matter of Smt. Shanti
Rani Das Dewanjee Vs. Dineshchandra Day [AIR 1997 SC 3985],
has also concluded that once the cause of action has occurred
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prior to the filing of the written statement, as the counter claim is
with regard to the said cause of action, the same would not be
barred merely because the written statement had already been
filed.
17. Even in the case of Ramesh Chand Ardawatiya Vs. Anil
Panjwani [AIR 2003 SC 2508], the Honourable Apex Court has
concluded that the purpose of allowing a counter claim even
after the trial has commenced is to ensure that there is no
multiplicity of litigation and all the claims and disputes between
the parties could be decided in the course of the same
proceedings. It would be apposite to reproduce paragraph No.
28 of the said judgment as under:
“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 counterclaim in a
civil suit. Firstly, the written statement filed under Rule 1
may itself contain a counterclaim which in the light of Rule
1 read with Rule 6A would be a counterclaim against the
claim of the plaintiff preferred in exercise of legal right
conferred by Rule 6A. Secondly, a counterclaim may be
preferred by way of amendment incorporated subject to the
leave of the Court in a written statement already filed.
Thirdly, a counterclaim may be filed by way of a
subsequent pleading under Rule 9. In the latter two cases the
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counterclaim though referable to Rule 6A 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 counterclaim 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 counterclaims, that is, all
disputes between the same parties being decided in the
course of the same proceedings. If the consequence of
permitting a counterclaim 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 counterclaim. ......”
18. In Sandeep Thaper Vs. SME Technologies Pvt. Ltd. [ AIR
2014 SC 897 = (2014) 2 SCC 302] , the Honourable Apex Court
has evolved the reasons, as to why a written statement is to be
permitted even beyond limitation prescribed under VIII Rule 1 of
the CPC. It is observed that the purpose for providing the time
schedule for filing a Written Statement is to ensure timely
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disposal of the suit and to avoid delay being caused by the
defendants. However, extension of time may be allowed by way
of an exception and for reasons to be assigned by the defendants.
Such extension of time is to be permitted if it was appropriate to
be granted on the basis of circumstances, which are exceptional
and have occasioned for reasons beyond the control of the
defendants and to ensure that grave injustice is not caused to the
defendants. As such, by imposing costs of RS.50,000/ the
Honourable Apex Court has permitted the filing of the written
statement beyond the period prescribed under Order VIIII Rule 1
of the CPC.
19. It also cannot be ignored that the claim putforth by the
defendants in the counter claim is not otherwise barred by
limitation under Article 163 of the Limitation Act. If a separate
suit was otherwise maintainable and could be entertained by the
Court, the defendants could very well be permitted to file a
counter claim keeping in view the law laid down by the
Honourable Apex Court in the cases of Shanti Rani (supra) and
Vijay Prakash (supra).
20. In Prem Bakshi Vs. Dharam Dev [AIR 2002 SC 559], the
Honourable Apex Court has considered a similar issue.
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21. In the light of the above, keeping in view, that the
grievance of the defendants is with regard to the documents
dated 31.12.2012 and 19.3.2013, which have been created prior
to the filing of the suit, I do not find that the trial Court has
committed any error in allowing Exhibit 34 and permitting the
defendants to file their counter claim.
22. As such, this petition being devoid of merits is, therefore,
dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J. )
...
akl/d
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8001 OF 2014
1. Pradeep Kashinathrao Kalyankar,
Age 54 years, Occ. Service
R/o Mangalwarpeth, Kaij,
District Beed.
2. Sow. Pramila Pradeep Kalyankar,
Age 54 years, Occ. Service
R/o Mangalwarpeth, Kaij,
District Beed. ..Petitioners
Versus
1. Pramod Kashinathrao Kalyankar,
Age 50 years, Occ. Business,
R/o Mangalwarpeth, Kaij,
District Beed.
2. Sumitra Pramod Kalyankar,
Age 45 years, Occ. Household,
R/o Mangalwarpeth, Kaij,
District Beed. ..Respondents
...
Advocate for Petitioners : Shri Shinde Prakash M.
Advocate for Respondents 1 & 2 : Shri Salunke M.V.
h/f Shri Salunke V.D.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: July 19, 2017
...
ORAL JUDGMENT :
1. Heard learned Advocates for the respective parties.
2. Rule.
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3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioners / plaintiffs are aggrieved by the order
dated 27.8.2015, passed by the trial Court, by which, application
Exhibit 136 seeking permission of the Court to file a counter
claim / cross suit has been allowed and the plaintiffs have been
permitted to file their written statement.
5. Shri Shinde, learned Advocate for the petitioners
strenuously submits that they have filed RCS No. 136 of 2013 for
seeking declaration of ownership and perpetual injunction. On
19.3.2013, a written partition deed was drawn on the basis of a
will. The said partition deed was verified before the Notary on
25.3.2013. Since a mutation entry was not being taken by the
Tahsildar on the basis of the partition deed, the petitioners
preferred RCS No.136 of 2013 on 25.5.2013. The respondents /
defendants filed the written statement on 13.8.2013 and the
counter claim which is the subject matter at issue, was filed on
24.2.2014 along with the application Exhibit 34, seeking
permission to register the complaint. These dates and sequence
of events are not disputed.
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6. The issue is as to whether the defendants have filed the
counter claim strictly in accordance with Order VIII Rule 6A of
the Code of Civil Procedure ("CPC"). For reference, Order VIII
Rule 6A of the CPC is reproduced 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 to 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.”
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7. Considering the above provisions, the issue is as to
whether the cause of action arose before the filing of the suit or
after the filing of the suit and before the filing of the Written
Statement of the defendant.
8. The plaintiffs contend on the basis of paragraph No.8 of
the counter claim dated 24.2.2014, that the cause of action arose
on 8.2.2014 and which is much after the filing of the written
statement on 13.8.2013. Reliance is placed upon the judgment of
the Honourable Apex Court in the matter of Vijay Prakash Jarath
Vs. Tej Prakash Jarath [(2016) 11 SCC 800]. Shri Shinde has
specifically relied upon paragraph No.9 of the said judgment,
which reads as under:
“9. A perusal of Subclause (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 (supra), wherein this Court observed as under:
“11. The provision of Order 8 Rule 6A must be
considered having regard to the aforementioned
provisions. A right to file counterclaim is an
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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 trespassed 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 Singh [(2006) 6 SCC 498].”
(emphasis is ours)
It is not a matter of dispute in the present case, that
cause of action for which the counterclaim was filed in the
present case, arose before the respondentplaintiff 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 counterclaim.”
9. It is, therefore, contended that considering the law laid
down in the case of Vijay Prakash (supra) and Bollepanda
(supra), a counter claim in relation to a cause of action which
has arisen after the filing of the written statement cannot be
permitted. I have no reason to reject the contention of Shri
Shinde since that is based on Rule 6A and in the light of settled
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law. However, the contention of Shri Shinde needs to be
scrutinized in the light of what has been pleaded by the
defendants in their counter claim and as to what are the prayers
put forth in the counter claim, which essentially constitute the
cause of action.
10. In paragraph No.8 of the counter claim, the defendants
have stated that the plaintiffs were assuring them that the matter
would be settled and the suit would be resolved. Therefore, the
defendants did not challenge the temporary injunction granted
by the trial Court under Order XXXIX Rule 1 of the CPC on
16.11.2013 and hence an appeal was not filed. It is then stated
that the plaintiffs resiled from their oral assurance and did not
withdraw the suit and finally declared on 8.2.2014 that they are
not going to withdraw the suit. Therefore, the counter claim has
been filed. In paragraph No.9, it is further stated that the
plaintiffs threatened the defendants on 16.2.2014 and hence
they decided to file the counter claim.
11. The above narration does not speak about what is the
claim that is being putforth by the defendants in their counter
claim. It speaks about the circumstances in which the defendants
did not challenge the temporary injunction order and the
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circumstances in which, they were left with no choice but to file
a counter claim.
12. In so far as the cause of action and the prayer putforth in
the counter claim are concerned, the defendants have narrated in
paragraph No.6 that blank stamp papers bearing signatures were
utilized by the plaintiffs for preparation of a ‘smaran patra’ of the
‘watani patra’ on 31.12.2012 and 19.3.2013. These two
documents, which pertain to indicating a reminder about the
partition deed is neither notarized nor is registered. The said
documents dated 31.12.2012 and 19.3.2013 are bogus
documents. This is the cause of action in the counter claim.
13. The defendants have then putforth a specific prayer at
clause (B), which reads as under:
“ It may kindly be declared that alleged documents
brought into existence by original plaintiffs styled as
Partition deed and Smaran patra of the partition deed dated
31.12.2012 and 19.3.2013 respectively to be fraudulent,
bogus, unauthorized and not binding upon the present
counter claimants / original defendants.”
14. It is, therefore, obvious that the prayer in the counter
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claim is that the ‘smaran patra’ of the partition deed dated
31.12.2012 and 19.3.2013 be declared as being fraudulent,
bogus, unauthorized and not binding upon the defendants. It,
therefore, establishes that the cause of action is 31.12.2012 and
19.3.2013.
15. In the case of Vijay Prakash (supra), the Honourable
Supreme Court, based on the facts of the case, has concluded
that though two and half years have lapsed after the framing of
the issues, as the cause of action set out in the counter claim has
arisen before the written statement was filed, the counter claim
could be permitted even at the stage when recording of evidence
was half way through. Observations of the Honourable Apex
Court in paragraph Nos.10 to 13 read as under:
“10. It is quite apparent from the factual position noticed
hereinabove, that after the issues were framed on
18.10.1993, the counter claim 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 counter claim, we are
satisfied, that there was no justification whatsoever for the
High Court to have declined, the appellant before this Court
from filing his counter claim on 17.06.1996, specially
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because, it is not a matter of dispute, that the cause of
action, on the basis of which the counter claim was filed by
defendant Nos.3 and 4, accrued before their written
statement was filed on 11.11.1992. In the present case, the
respondentplaintiff'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 respondentplaintiff before the trial court, if the counter
claim 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.
11. For the reasons recorded hereinabove, we set aside
the impugned order passed by the High Court dated
02.01.2008, and restore the order passed by the trial court
dated 28.10.1996.
12. The appeals are allowed in the above terms.
13. Needless to mention, that it shall be open to the
respondent plaintiff to raise all pleas open to him through
the written statement which is filed by the respondent
plaintiff, to the counter claim.”
16. The Honourable Apex Court in the matter of Smt. Shanti
Rani Das Dewanjee Vs. Dineshchandra Day [AIR 1997 SC 3985],
has also concluded that once the cause of action has occurred
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prior to the filing of the written statement, as the counter claim is
with regard to the said cause of action, the same would not be
barred merely because the written statement had already been
filed.
17. Even in the case of Ramesh Chand Ardawatiya Vs. Anil
Panjwani [AIR 2003 SC 2508], the Honourable Apex Court has
concluded that the purpose of allowing a counter claim even
after the trial has commenced is to ensure that there is no
multiplicity of litigation and all the claims and disputes between
the parties could be decided in the course of the same
proceedings. It would be apposite to reproduce paragraph No.
28 of the said judgment as under:
“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 counterclaim in a
civil suit. Firstly, the written statement filed under Rule 1
may itself contain a counterclaim which in the light of Rule
1 read with Rule 6A would be a counterclaim against the
claim of the plaintiff preferred in exercise of legal right
conferred by Rule 6A. Secondly, a counterclaim may be
preferred by way of amendment incorporated subject to the
leave of the Court in a written statement already filed.
Thirdly, a counterclaim may be filed by way of a
subsequent pleading under Rule 9. In the latter two cases the
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counterclaim though referable to Rule 6A 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 counterclaim 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 counterclaims, that is, all
disputes between the same parties being decided in the
course of the same proceedings. If the consequence of
permitting a counterclaim 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 counterclaim. ......”
18. In Sandeep Thaper Vs. SME Technologies Pvt. Ltd. [ AIR
2014 SC 897 = (2014) 2 SCC 302] , the Honourable Apex Court
has evolved the reasons, as to why a written statement is to be
permitted even beyond limitation prescribed under VIII Rule 1 of
the CPC. It is observed that the purpose for providing the time
schedule for filing a Written Statement is to ensure timely
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disposal of the suit and to avoid delay being caused by the
defendants. However, extension of time may be allowed by way
of an exception and for reasons to be assigned by the defendants.
Such extension of time is to be permitted if it was appropriate to
be granted on the basis of circumstances, which are exceptional
and have occasioned for reasons beyond the control of the
defendants and to ensure that grave injustice is not caused to the
defendants. As such, by imposing costs of RS.50,000/ the
Honourable Apex Court has permitted the filing of the written
statement beyond the period prescribed under Order VIIII Rule 1
of the CPC.
19. It also cannot be ignored that the claim putforth by the
defendants in the counter claim is not otherwise barred by
limitation under Article 163 of the Limitation Act. If a separate
suit was otherwise maintainable and could be entertained by the
Court, the defendants could very well be permitted to file a
counter claim keeping in view the law laid down by the
Honourable Apex Court in the cases of Shanti Rani (supra) and
Vijay Prakash (supra).
20. In Prem Bakshi Vs. Dharam Dev [AIR 2002 SC 559], the
Honourable Apex Court has considered a similar issue.
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21. In the light of the above, keeping in view, that the
grievance of the defendants is with regard to the documents
dated 31.12.2012 and 19.3.2013, which have been created prior
to the filing of the suit, I do not find that the trial Court has
committed any error in allowing Exhibit 34 and permitting the
defendants to file their counter claim.
22. As such, this petition being devoid of merits is, therefore,
dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J. )
...
akl/d
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