====================================================== Krishnadeo Singh son of late Sheoraj Verma resident of Ram Nagar, P.O. Ram v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17582 of 2011 ====================================================== Krishnadeo Singh son of late Sheoraj Verma resident of Ram Nagar, P.O. Ram Nagar, P.S. Obra, District Aurangabad. Versus 1. Smt.Deo Rani Devi Wife of Chandrika Pd. Singh resident of Tawakala, .... .... Petitioner/s P.S. Arwal at present Mehandia, Distrtict Jehanabad. 2. Smt. Fulbaso Devi wife of Shri Mandip Singh resident of Bariwa, P.S. Aurangabad, at present Ram Nagar, P.S. Ram Nagar, P.S. Obra, District Aurangabad. 3. Santan Prasad Singh son of Bishunpat Singh 4. Deo Sharan Singh son of Ram Ratan Singh, both of village Ram Nagar, P.S. Obra, District Aurangabad. 5. ChandradeoSingh son of Triveni Singh 6. Bishundeo Singh son of Triveni Singh , both resident of Manatha, P.S. Obra, District Aurangabad. 7. Mundrika Mahto son of Ram Nath Mahto resident of Ram Nagar, P.S. Obra, District Aurangabad. 8. Ramsudin Verma 9. Ram Prasad Verma 10. Pramanand Verma , respondent nos. 8 to 10 sons of late Ram Nath Verma , resident of Ram Nagar, P.S. Obra, District Aurangabad. 11. Deonandan Singh 12. Ramswarup Singh , both sons of late Sheoraj Verma resident of Ram Nagar, P.S. Obra, District Aurangabad.
Legal Reasoning
and having perused the impugned order, I am of the view that the learned Senior Counsel appearing on behalf of the petitioner is right in the submission that the counter claim ought not to have been rejected on the ground that it was not filed simultaneously with the written statement. He has rightly placed reliance on the judgment of the Hon’ble Supreme Court in the case of Mahendra Kumar (Supra), paragraph 15 o which reads as follows :- “The next point that remains to be considered is whether Rule 6-A(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 6-A(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 6-A(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 limited for delivering his defence has expired, whether such counter claim 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 6-A(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 6-A(1) of the Code of Civil Procedure. As the cause of action for the counter claim had arisen before the filing of the time the Patna High Court CWJC No.17582 of 2011 (6) dt.19-07-2013 5 written statement, the counter claim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to use accrues, has been provided for any suit for is provided which no period of elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under Section 3(2)(b) of the Limitation Act, has been filed by the appellants within three years from the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong in dismissing the counter claim. “ limitation From the impugned order, it appears that the delay in filing counter claim is the main basis for its rejection by the court below. Apparently, the learned court below erred while holding that the counter claim was filed belatedly after commencement of the trial for the reasons that the petitioner and some other persons were impleaded as defendants after commencement of trial. As has been held by the Supreme Court in the case of Mahendra Kumar (Supra) and is evident from the provisions contained in Order VIII Rule 6-A of the Code, there is no requirement that the counter claim should be filed along with the written statement. Reliance placed by the learned counsel for the contesting respondents on the Supreme Curt judgment in the case of Ramesh Chand Ardawatiya (Supra) will not apply in the present case as in that case no written statement was filed and in that circumstance the Court held that there being no written Patna High Court CWJC No.17582 of 2011 (6) dt.19-07-2013 6 statement filed in the suit, there is no question of filing counter claim. In that circumstance, the Supreme Court held that a belated counter claim might not prejudice the defendants because instead of counter claim having been refused to be entertained, he was also at liberty to file his own suit based on the cause of action for counter claim. In view of the above, I hold that the impugned order dated 10.06.2008 passed by the learned Munsif, Daudnagar (Aurangabad) in Title Suit No. 104 of 1993 is un-sustainable and is, accordingly, set aside. The court below is directed to accept the counter claim. However, the plaintiffs/contesting respondent nos. 1 and 2 shall have the liberty to take recourse to Order VIII Rule 6-A of the Code and apply to the court below for exclusion of the counter claim if so advised. Such application, if filed, shall be considered by the court below on its own merits, in accordance with law. This application is, accordingly, allowed. Amin/- (Chakradhari Sharan Singh, J)
Arguments
13. Basanti Devi wife of Shri Sudarshan Verma resident of Mahuawa, P.O. Koithi, P.S. Obra, District Aurangabad. 14. Deo Kuer Devi wife of Rajdeo Verma resident of Uchahal Bigha, P.O. Dhamoni, P.S. Haspura, District Aurangabad. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Surendra Kumar Singh, Sr. Advocate, Mr. Anil Kumar Singh & Mr. Praveen Prakash. For the Respondents 1 &2:- : M/S. Vinod Shankar Modi, Bindeshwar Prasad, Sushil Kumar & Sheel Bhadra Jha. ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 6 19-07-2013 Heard learned counsel for the petitioner and learned counsel appearing for respondent nos. 1 and 2 who are the contesting respondents. Petitioner is aggrieved by an order dated Patna High Court CWJC No.17582 of 2011 (6) dt.19-07-2013 2 10.06.2008 passed by the learned Munsif, Daudnagar (Aurangabad) in Title Suit No. 104 of 1993 whereby the petitioner’s counter claim filed under Order VIII Rule 6-A of the Code of Civil Procedure (hereinafter referred to as the Code) came to be rejected. Certain facts are not in dispute. The suit was filed in the year 1993. For the first time the petitioner was impleaded as defendant no. 9(b) along with some other persons as defendants on 16.09.2005. The petitioner filed his written statement on 29.12.2006. On 28.03.2007 he filed his counter claim under Order VIII Rule 6-A of the Code. This is to be noted that before impleadment of the petitioner as defendant no. 9(b) in the suit, the trial had commenced and certain witnesses were also examined. From the impugned order, it appears that the court below refused to accept the counter claim on the reasoning that such counter claim could have been filed simultaneously with the written statement. The court below took into account the fact that on 29.12.2006 the first oral evidence was adduced and the counter claim was filed only to create unnecessary obstruction in the suit proceedings. Learned Senior Counsel appearing on behalf of the petitioner has contended that the reasons assigned by the court below for rejection of the counter claim are un-sustainable. He Patna High Court CWJC No.17582 of 2011 (6) dt.19-07-2013 3 submits that the court below wrongly recorded that the petitioner was trying to delay the disposal of the suit unmindful of the fact that the petitioner and other defendant nos. 9(a) to 9(d) were impleaded party to the suit after 12 years of institution of the suit at the instance of the plaintiff on 16.09.2005. He submits that within three months of filing of the written statement the counter claim was filed on 28.03.2007. This is no one’s case that the said counter claim is time barred. He further submits that the reasoning for rejection of the counter claim that it should have been filed simultaneously with the written statement is equally erroneous. He contends that there is no provision which requires filing of counter claim along with the written statement. He further submits that Order VIII Rule 9 of the Code permits filing of counter claim after filing of the written statement. Learned Senior Counsel in support of his contention has placed reliance on a judgment of the Supreme Court in the case of Mahendra Kumar and another V. State of Madhya Pradesh and others reported in (1987) 3 SCC, 265. Learned counsel for the contesting respondent nos. 1 and 2, on the other hand, has submitted that the court below rightly rejected the counter claim which was based on new facts un-connected with the dispute involved in the suit. He submits, in the facts and circumstances of the case, that instead of filing the Patna High Court CWJC No.17582 of 2011 (6) dt.19-07-2013 4 counter claim, the petitioner could have filed a separate suit. In support of his submission he has placed reliance on a Supreme Court judgment in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani reported in A.I.R. 2003 S.C., 2508. After having heard learned counsel for the parties