High Court
Legal Reasoning
judgment of Hon’ble Supreme Court in case of Ashok Kumar Kalra V.Wing CDR. Surendra Agnihotri, AIROline 2019 SC 1525 to contendedthat Order VIII Rule 6A does not put embargo after filing counter claimafter filing written statement and the restriction is only with respect tothe actual cause of action. He also placed reliance on the judgment ofHon’ble Supreme Court in case of Vijay Prakash Jarath Vs. Tej PrakashJarath, AIR 2016 Supreme Court 1304 to contend that counter claim canbe filed on the basis of cause of action accrued before filing of writtenstatement and where no serious injustice or irreparable loss would besuffered by the respondents, counter claim needs to be allowed. He tooksupports of the judgment of Hon’ble Supreme Court in case of J. Samueland Others Vs. Gattu Mahesh and Others, 2012 STPL 5349 SC. Relianceis also placed on the judgment of this Court in case of PradeepKashinathrao Kalyankar and Anr Vs. Pramod Kashinathrao Kalyankar andAnr., 2018(3) All MR 405.6.Application Exhibit 36 is filed under Order VI Rule 17 of theCPC for seeking amendment to the written statement. No doubt theamendment to the written statement needs to be allowed liberally ascompared to the amendment to the plaint, however, at the same timeproviso to the Order VI Rule 17 of the CPC cannot be given complete gobye. For the sake convenience the said provision is produced as under:-923.wp12067.24 (final).odt3 of 8 “Order VI – Pleadings Generally Rule 17 – Amendment of pleadings.- The Court may atany stage of the proceedings allow either party to alter oramend his pleadings in such manner and on such termsas may be just, and all such amendments shall be madeas may be necessary for the purpose of determining thereal questions in controversy between the parties. Provided that no application for amendment shallbe allowed after the trial has commenced, unless theCourt comes to the conclusion that in spite of duediligence, the party could not have raised the matterbefore the commencement of trial.”7.Perusal of this provision shows that there is embargo for theCourt to allow any application after the trial has commenced unless theCourt comes to the conclusion that in spite of due diligence the partycould not have raised the matter before the commencement of trial. Thusit unless there is sufficient to reason put forth by a party and duediligence is shown that in spite of the same, the party could not haveraised the matter before the commencement of trial, amendment cannotbe allowed.8.Application of defendants (Exhibit 36) does not show duediligence on the part of the defendants in bringing the pleadings onrecord before commencement of trial. Needless to say that sufficientreason cannot be substituted by a created or imaginary one. Theapplication shows that defendant noticed while preparing for cross-examination of plaintiff that certain facts are not brought on record.Permitting such defence would lead to frustrate the provision of Order VI923.wp12067.24 (final).odt4 of 8 Rule 17 of CPC and such stand cannot be permitted to be taken in orderto overcome the embargo the created by law.9.Apparently the amendment sought by the defendants is notsubsequent event but the alleged fact which existed prior to filing ofwritten statement. In such circumstances due diligence is mandatory tohave been shown by the defendants, in order to enable the defendantsto avail the provisions of Order VI Rule 17 of CPC. Learned Trial Court inthe impugned order has dealt with the said issue and has recordedcategory finding that the defendants have failed to satisfy the test of duediligence. This Court in exercise of writ jurisdiction is not justified tocause interference therein for want of any perversity.10.As far as application Exhibit 37 filed by the defendants forcounter claim is concerned, the same has not been filed along withwritten statement and till the stage of commencement of recording ofevidence of plaintiffs. In this regard reference can be made to thejudgment cited supra in case of Ashok Kumar Kalra wherein the Hon’bleSupreme Court has held in paragraph nos. 16 to 20 as under:“16. The time limitation for filing of the counter−claim,is not explicitly provided by the Legislature, rather onlylimitation as to the accrual of the cause of action isprovided. As noted in the above precedents, furthercomplications stem from the fact that there is apossibility of amending the written statement. However,we can state that the right to file a counter−claim in a923.wp12067.24 (final).odt5 of 8 suit is explicitly limited by the embargo provided for theaccrual of the cause of action under Order VIII Rule 6A.Having said so, this does not mean that counter−claimcan be filed at any time after filing of the writtenstatement. As counter−claim is treated to be plaint,generally it needs to first of all be compliant with thelimitation provided under the Limitation Act, 1963 asthe time−barred suits cannot be entertained under theguise of the counter−claim just because of the fact thatthe cause of action arose as per the parameters ofOrder VIII Rule 6A. 17. As discussed by us in the preceding paragraphs, thewhole purpose of the procedural law is to ensure thatthe legal process is made more effective in the processof delivering substantial justice. Particularly, thepurpose of introducing Rule 6A in Order VIII of the CPCis to avoid multiplicity of proceedings by driving theparties to file separate suit and see that the disputebetween the parties is decided finally. If the provision isinterpreted in such a way, to allow delayed filling of thecounter claim, the provision itself becomes redundantand the purpose for which the amendment is made willbe defeated and ultimately it leads to flagrantmiscarriage of justice. At the same time, there cannotbe a rigid and hyper−technical approach that theprovision stipulates that the counter−claim has to befiled along with the written statement and beyond that,the Court has no power. The Courts, taking intoconsideration the reasons stated in support of thecounter− claim, should adopt a balanced approachkeeping in mind the object behind the amendment andto sub−serve the ends of justice. There cannot be anyhard and fast rule to say that in a particular time thecounter−claim has to be filed, by curtailing thediscretion conferred on the Courts. The trial court hasto exercise the discretion judiciously and come to adefinite conclusion that by allowing the counter−claim,no prejudice is caused to the opposite party, process isnot unduly delayed and the same is in the best interestof justice and as per the objects sought to be achievedthrough the amendment. But however, we are of theconsidered opinion that the defendant cannot be923.wp12067.24 (final).odt6 of 8 permitted to file counter− claim after the issues areframed and after the suit has proceeded substantially.It would defeat the cause of justice and be detrimentalto the principle of speedy justice as enshrined in theobjects and reasons for the particular amendment tothe CPC.18. In this regard having clarified the law, we may notethat the Mahendra Kumar Case (supra) needs to beunderstood and restricted to the facts of that case. Wemay note that even if a counter− claim is filed withinthe limitation period, the trial court has to exercise itsdiscretion to balance between the right to speedy trialand right to file counter−claim, so that the substantivejustice is not defeated. The discretion vested with thetrial court to ascertain the maintainability of thecounter− claim is limited by various considerationsbased on facts and circumstances of each case. Wemay point out that there cannot be a straitjacketformula, rather there are numerous factors whichneeds to be taken into consideration before admittingcounter−claim.19. We may note that any contrary interpretation wouldlead to unnecessary curtailment of the right of adefendant to file counter−claim. This Court needs torecognize the practical difficulties faced by the litigantsacross the country. Attaining the laudable goal ofspeedy justice itself cannot be the only end, rathereffective justice wherein adequate opportunity isprovided to all the parties, need to be recognized aswell [refer to Salem Advocate Bar Association Case(supra)].20. We sum up our findings, that Order VIII Rule 6A ofthe CPC does not put an embargo on filing thecounter−claim after filing the written statement, ratherthe restriction is only with respect to the accrual of thecause of action. Having said so, this does not giveabsolute right to the defendant to file thecounter−claim with substantive delay, even if thelimitation period prescribed has not elapsed. The courthas to take into consideration the outer limit for filing923.wp12067.24 (final).odt7 of 8 the counter−claim, which is pegged till the issues areframed. The court in such cases have the discretion toentertain filing of the counter−claim, after taking intoconsideration and evaluating inclusive factors providedbelow which are only illustrative, though notexhaustive:i. Period of delay.ii. Prescribed limitation period for the cause of actionpleadediii. Reason for the delay.iv. Defendant’s assertion of his right.v. Similarity of cause of action between the main suitand the counter−claim.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”(emphasis supplied)11.The paragraph 20 of the judgment in no uncertain terms laysdown that in appropriate cases the Court may use its discretion toentertain the filing of the counter claim after filing of written statementbut in any case not after framing of issues. It is thus clear from theaforesaid dictum of the Hon’ble Supreme Court that the applicationExhibit 37 filed after framing of issues and after plaintiffs led evidence isnot tenable.12.As a result of above discussion, petition stands dismissed,since it sans merits.(R. M. JOSHI, J.)ssp923.wp12067.24 (final).odt8 of 8
Arguments
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12067 OF 2024Pandit Anna Gaikwad And AnotherVERSUSKantilal Mishrilal KothariMr. G. L. Deshpande, Advocate for the petitioners Mr. P. P. Patni, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE12th NOVEMBER, 2024PER COURT :-1.At the outset it needs to be recorded that when this petitionwas heard, this Court has shown its disinclination to grant relief to thepetitioners and at that time, on instructions, learned counsel for thepetitioners has shown his inclination to withdraw the petition. Thus,accordingly an order came to be dictated in the open Court aboutwithdrawal of the petition. However, thereafter learned counsel for thepetitioners, on instructions, mentioned this matter during the course ofthe day and it was requested to pass order on merit. Since the order ofwithdrawal of petition as dictated, inadvertently the same was signedand uploaded. Hence, the order of withdrawal of the petition standscancelled. Uploaded order be deleted. Instead present order beuploaded.923.wp12067.24 (final).odt1 of 8 2.This petition takes exception to common order passed belowExhibits 36 and 37 in R.C.S. No. 1630/2022. The petitioners aredefendants therein and had moved an application Exhibit 36 under Order6 Rule 17 in the Code of Civil Procedure (for short ‘CPC’). Similarlyapplication Exhibit 37 came to be filed for permission to file counterclaim in the suit. Both applications were rejected, hence, this petition.3.Respondents are plaintiffs in R.C.S. No. 1630/2022 and filedsuit for declaration and possession of the suit property. Defendants filedwritten statement on 23/12/2022. Thereafter issues were framed videExhibit 14 on 13/02/2023. Thereafter plaintiffs filed affidavit of evidencevide Exhibit 17. When the matter was at the stage of cross-examination,application Exhibit 37 came to be filed.4.Plaintiffs opposed the said application on the ground that theapplications are filed after commencement of trial without justifying thedelay caused in making application for amendment. It is also claimed bythe plaintiffs that no subsequent event is sought to be introduced by thedefendants in order to allow the amendment to the written statement.Counter claim is also opposed on the ground that the same is not filedwithin limitation and it is filed after commencement of the trial.5.Learned counsel for the petitioners placed reliance on the923.wp12067.24 (final).odt2 of 8