IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11th DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 299/2014 (GM-CPC) BETWEEN:
SMT VIJAYALAKSHMI RAMANNA W/O LATE T V RAMANNA AGED ABOU 69 YEARS R/AT 114, NEW NO.24 K R ROAD, BASAVANAGUDI BANGALORE-560004 (BY SRI.V.S.HEGDE, ADV AND SRI. S.B.KRISHNA KUMAR ADVCATE) AND:
1.SHRI RAGHUNANDAN RAMANNA S/O LATE T V RAMANNA AGED ABOUT 42 YEARS PERMANENT ADDRESS R/AT 114, NEW NO.24 K R ROAD, BASAVANAGUDI BANGALORE-560004 AND ALSO HAVING ADDRESS R/AT NO.28 AGA ABBAS ALI ROAD C-6, SWAPNALOK ULSOOR, BANGALORE-560042 2.SHRI DEVANANDAN RAMANNA S/O LATE T V RAMANNA AGED ABOUT 36 YEARS R/AT 114, NEW NO.24 K R ROAD, BASAVANAGUDI BANGALORE-560004 ... PETITIONER ... RESPONDENTS (BY SRI. KRISHNAMURTHY K.R, ADV FOR R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE COURT BELOW AND SET ASIDE THE IMPUGNED ORDER DATED 12.11.2013 PASSED BY THE XXXVII ADDL. CITY CIVIL AND SESSION JUDGE, (CCH-39) AT BANGALORE ON I.A. NO.5 IN O.S. NO.7325/2009 AT ANN-A BY ALLOWING THE I.A. NO.5 THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the first defendant in a comprehensive suit filed by the first respondent in O.S.No.7325/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 12.11.2013 entered by XXXVIII Addl. City Civil Judge, Bengaluru, whereby his application in I.A.No.5 filed u/s.151 of CPC, 1908 seeking leave of the trial Court for filing the Counter Claim has been negatived. The contesting respondents having entered appearance through their counsel, resist the writ petition.
2. Learned counsel for the petitioner argues that the impugned order has error apparent on its face inasmuch as the Court below has treated the matter on merits as is reflected at para 15 thereof; though legally speaking no leave is necessary, by abundant caution the subject application was filed u/s.151 of CPC which Court treated with a wrong premise that for filing of Counter Claim subsequent to filing of the Written Statement, leave is a sine qua non; the ground on which the petitioner is prevented from filing his Counter Claim is legally unsustainable. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the contesting respondent plaintiff per contra opposes the writ petition contending that counter claim is time barred; counter claim contains the grounds which are mutually destructive of each other; and, the order rejecting the counter claim amounts to decree as defined u/s.2(2) of CPC, 1908. So contending he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the parties and I have perused the petition papers; I have adverted to the ruling cited at the Bar.
5. The comprehensive suit in O.S.No.7325/2009 is by the first respondent, wherein inter alia a prayer is for cancellation of Partition Deed dated 14.05.2007; the petitioner filed his Written Statement on 29.03.2010;
subsequently he filed application in I.A.No.5 u/s.151 of CPC, 1908 on 29.07.2013 seeking leave of the trial Court for filing of the counter Claim; at the time this application was filed the trial of the suit was not only yet to begin and even issues were yet to be framed; therefore the question of the said application being belatedly filed pales into insignificance.
6. The court below at para 15 of its impugned order has observed as under, which constitutes the concise ground on which the request of the petitioner for leave to file the counter claim is negatived.
“The case papers reveal that the Defendant No.1 filed her written statement on 29.03.2010 wherein she stated about earlier partition in the family as per family settlement dated 14.05.2007 and denied Plaintiff’s right to maintain suit for partition. However, she has maintained I.A.No.5 on 29.07.2013 praying for permission to file her counter-claim on the ground that she is entitled to get her fair and equitable 1/3rd share in the suit property. The contents of the counter-claim indicates that the Defendant No.1 has put forth such claim on the ground that the Plaintiff is claiming share in the properties though there was earlier partition in the family. When the Defendant No.1 specifically contends execution of partition deed dated 14.05.2007 between her husband and other Defendants dividing their shares, it is to be held that the counter-claim of Defendant No.1 for partition in all the joint family properties is untenable. In the said circumstances, this Court holds that the Defendant No.1 has not made out a valid ground to allow her to maintain a counter-claim”.
The above observation borders the domain of the main matter, arguably.
7. The impugned order proceeds on a wrong legal premise that leave of the Court is a pre-condition for filing of Counter Claim once the Written Statement already is filed. No provision of law is brought to the notice of this Court for sustaining such a legal premise that once the defendant files the Written Statement, he can file the counter claim only if leave of the Court is granted as a pre- condition. This constitutes an error of law warranting indulgence of this Court for setting the same at naught, in view of the decision of the Apex Court in the case of MAHENDRA KUMAR vs. STATE OF MADHYA PRADESH, (1987) 3 SCC 265; para 15 thereof reads as under:
“15. The next point that remains to be considered is whether Rule 6A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter claim after the filing, of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1)of the Code of Civil Procedure”.
8. The contention of the respondent-plaintiff that the Counter Claim is time barred and therefore even otherwise the same cannot be permitted to be filed is difficult to countenance especially when the same involves mixed questions of law & facts, which the trial court would be in a better position to appreciate after adverting to the pleadings of the parties and the evidence to be placed in support thereof.
9. The other submission of the learned counsel for the respondent plaintiff that the Counter Claim when read with the contentions taken up in the Written Statement are mutually destructive, may not be a sufficient ground for not receiving the Counter Claim, subject to all just exceptions. Whether the grounds urged by the parties in their pleadings are inconsistent with each other or mutually destructive, again is a matter which needs due consideration by the court below after the trial is over. After all, the pleadings of the parties in a suit need to be liberally construed since English is not our mother tongue and law cannot disown the elements of justice, the rules of pleadings have their own significance, being beside the point.
10. Lastly the contention that the impugned order going by its wording amounts to a decree as defined u/s.2(2) of CPC and therefore the writ petition is not the right remedy, the decree being appealable u/s.96 of CPC is not acceptable, either; what is rejected is the prayer of the petitioner for grant of leave to file the Counter Claim and not the Counter Claim as such; while interpreting the impugned order, one has to keep in mind both its text and context; the orders of the Courts cannot be construed as Euclid’s Theorems nor as statutory provisions; nobody disputes that the linguistic quality and legal content of the impugned order are far from being satisfactory; but that itself is no ground for an attack. This apart the objection filed by the first respondent-plaintiff was to the petitioner’s application for leave to file the Counter Claim and not to the Counter Claim itself; this is how both the contending parties and the court below approached the matter; and there is no reason for this Court to tread in a different direction. Therefore this contention too meets the same fate.
11. The petitioner in his Counter Claim has sought for declaration as to the Partition Deed dated 14.05.2007 which is also the prayer of the respondent plaintiff in the suit; what prejudice would have been caused to any of the parties has not been adverted to by the Court below while considering petitioner’s request for grant of leave to file the Counter Claim. This constitutes yet another error with which the impugned order is infected.
In the above circumstances, this writ petition succeeds; the impugned order is invalidated; the court below is directed to receive the Counter Claim filed by the petitioner and to proceed with the matter in accordance with law.
Petitioner in the circumstances of the case shall pay a sum of Rs.10,000/- by way of cost to the first respondent-plaintiff within a period of one month or on the next date of hearing, whichever is later, failing which the impugned order now quashed shall stand resurrected.
The observations made herein above having been confined to disposal of this writ petition shall not influence the trial and decision making in the suit. Since the suit is about a decade old, the learned trial Judge is requested to try and dispose of the same within an outer limit of one year excluding the period of adjournment to be sought for by the respondent-plaintiff.
It is open to the respondent-plaintiff to file his Written Statement to the Counter Claim of the petitioner herein within six weeks.
Sd/- JUDGE Snb/