Heard Shri N.C. Rajvanshi, Senior Counsel assisted by Shri Surendra Tiwari and Shri Suresh Chandra Mishra for the petitioner and Shri Dharm Pal Singh, Senior Counsel assisted by Shri Y.N. Singh and Shri Abhishek Singh for the respondents.
A suit for permanent injunction was filed before the court below, wherein written statement was filed on 4/6.5.2013. Subsequently an application for amendment under Order 6 Rule 17 CPC was filed on 20.11.2013, wherein a counter claim was also set up by the defendants. It is undisputed between the parties that the application for amendment was filed under Order 6 Rule 17. The trial court by means of order dated 25th August, 2014 allowed the application filed under Order 6 Rule 17, whereby the defendant was also allowed to comply with the requirements of counter claim. On feeling aggrieved the plaintiff challenged the order before the revisional court and by order dated 12.11.2014 the revisional court has also affirmed the order passed by the trial court. Both the orders passed by the courts below have given rise to the present writ petition.
Learned counsel for the petitioner-plaintiff contends that the cause of action disclosed in the amendment application is subsequent to the date of filing written statement and in any case the counter claim cannot be set up by the respondents-defendants after filing of the written statement for which the scope and limitations are well defined under Order 8 Rule 6A, which the trial court has wrongly applied. Learned counsel for the petitioner in support of his contentions has placed reliance upon Mahendra Jung Rana v. Pan Singh Nagi, 1980 All.L.J. 319; Bollepanda P Poonacha v. K.M. Madapa, 2008 LawSuit (SC) 273 and Charan Singh v. Radhey Shyam Arora & Ors., 2014 (122) RD 292.
On the contrary learned counsel appearing for the respondents while defending the impugned orders has argued that the object of counter claim is to avoid multiplicity of the proceedings and the trial court having allowed setting up of counter claim while allowing the application under Order 6 Rule 17 has not committed any illegality. In support of his contention learned counsel for the respondents has placed reliance on Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Day, AIR 1997 SC 3985 (1).
In the context of rival submissions two questions arise for consideration before this Court:-
(1) Whether a counter claim can be set up after filing of the written statement?
(2) Whether counter claim can be set up on the basis of a cause of action, which may partly & wholly arise subsequent to the filing of written statement?
As far as the first question is concerned, the scheme of Order VIII Rule 6A clearly postulates that the defendant may set up a counter claim against the plaintiff before delivering his defence or before the time limited for delivering his defence has expired. This provision clearly shows that a counter claim in the normal course is to be set up before the written statement is filed. Whether a counter claim can be set up after filing of written statement or not, Order VIII Rule 9 comes to the aid of defendant, which reads as under:-
"9. Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same."
The aforesaid provision allows a defendant to set off defence or counter claim with the leave of court even after filing written statement upon such terms as the Court thinks fit. In the present case the contention of learned counsel for the petitioner that no counter claim can be set up after filing of the written statement appears to be a rigid proposition of law, which is subject to an exception as envisaged under Order VIII Rule 9. The scope of this provision cannot be restricted in terms of the proposition as is canvassed by learned counsel for the petitioner.
As far as the second question is concerned, the objectionable part of the amendment application, which is said to constitute the cause of action having accrued subsequent to the date of filing written statement reads as under:-
"16³& ;g fd mDr la'kks/ku izfrokni= dks la'kksf/kr djus dk dkj.k rc iSnk gqvk tc oknh us tksj tcjnLrh ls la'kksf/kr izfrokn eSi esa tks v{kj d] [k] x] ?k ls nf'kZr gS tks iwoZ ds izfrokn eSi esa pdZekxZ Fkk tks 55 ehVj yEck rFkk 10 dM+h pkSM+k Fkk] dks rksM+dj vkjth la[;k 1010 ds iwoZ va'k es feyk fy;k gS vkSj izfroknhx.k ds ckj&ckj dgus ij Hkh fnukad 18-11-2013 bZ0 dks vfUre rkSj ij bUdkj dj fn;k ftlds dkj.k oknh ds fo:) dkmUVj Dyse izLrqr djus dh vko'drk iSnk gq;hA "
In the context of aforesaid paragraph mentioning the date i.e. 18.11.2013, which admittedly is subsequent to the date of filing written statement, according to learned counsel for the petitioner is the actual date of accrual of cause of action, which being subsequent to the date of filing written statement, hence the court below has wrongly allowed the counter claim to be set up by the defendants.
It is not disputed between the parties that the injunction suit or the counter claim relates to a chak road, which is Gaon Sabha land and facilitates access to the respective tenure holders. The dispute has arisen between the plaintiff and the defendants, who stand on equal footing so far as the use of chak road is concerned. In this view of the matter allowing multiplicity of proceedings may not be in the fitness of facts and circumstances of the case and to this extent the object of counter claim seems to be rightly projected by learned counsel appearing for the defendants.
From the perusal of objectionable paragraph of the application filed under order 6 Rule 17 it is clear that the disputed paragraph mentioning the relevant date of cause of action on 18.11.2013 is in the sequence of events, which stretches the cause of action beyond the date of filing of written statement. Although mention of this date does not exclusively constitute the cause of action but it cannot be disputed that mention of the said date being inseparable from cause of action cannot be lost right of. Therefore, this Court is of the considered opinion that a part of cause of action has accrued after filing of the written statement. Order VIII Rule 6A CPC for ready reference is 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 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."
The jurisdiction of considering the scope of counter claim is open to be exercised within the parameters of Order VIII Rule 6A, therefore, the court below while construing the cause of action could not ignore the material date i.e. 18.11.2013, which is an integral part of cause of action and this event has taken place after filing of the written statement. In other words a part of cause of action has taken place beyond the period of limitation envisaged in Order VIII Rule 6A. Once the cause of action wholly or in part accrues after the defendant has delivered his defence or before the time limited for delivering defence has expired, a counter claim cannot be allowed to be set up. Giving up the plea of mention of date i.e. 18.11.2013 as proposed by learned counsel for the respondents, at this stage cannot rectify the wrongful exercise of jurisdiction by the court below, which runs against the statute, and it is open to the respondent-defendant to avail remedy as may be open to him under law. As far as the question of cause of action is concerned, the whole cause of action inclusive of the event of 18.11.2013 is bound to relate to a point of time prior to the date of filing written statement, which admittedly is not the situation in the present case, therefore, the impugned orders are clearly beyond the scope of Order VIII Rule 6A.
The writ petition is allowed and the impugned orders dated 25.08.2014 and 12.11.2014 passed by the courts below are set aside. There shall be no order as to costs.
Order Date :-09.12.2014 SP/ (Attau Rahman Masoodi,J.)