Birbal (D) through L.Rs. vs Nand Kumar and Others

S.U. Khan, J.—Heard learned Counsel for the petitioner and learned Counsel for respondent No. 2. Even though no one appeared on behalf of other respondents in spite of sufficient service, however, on the date when the arguments were heard, learned Counsel for respondent No. 1 stated that interest of respondent No. 2 and other respondents was exactly the same.

This is plaintiffs writ petition, who has filed O.S. No. 408 of 1985 against the respondents. The dispute in the suit relates to a house bearing No. 372. Relief claimed in the plaint is for partition and separate possession of 12/36th share of the plaintiff in the said house. However, in para 13 of the plaint it was stated that plaintiffs father had purchased adjoining houses bearing Nos. 373 and 374 through registered sale deed dated 3.3.1994 from one Thakur. In para 14 it was stated that apart from the house in dispute, i.e., House No. 372, other joint properties, which were in the nature of agricultural lands, had been divided between the parties during consolidation. Para 13 of the plaint was replied in para 13 of the written statement. The reply was of denial. It was stated that the executant of the alleged sale deed had no right to transfer house Nos. 373 and 374 and the sale deed was a forged document having no adverse effect upon the rights of the answering defendants. However, it was not stated in the original written statement that defendants were claiming any right in the said houses.

In any view of the matter the assertion that the two houses other than the house in dispute were purchased by the plaintiffs father was redundant having no bearing on the relief claimed in the plaint.

In the suit evidence was adduced and the arguments were concluded and the judgment was reserved. However, before judgment could be delivered defendants 1 to 5 filed an application seeking amendment in the written statement and also setting up a counter-claim. Through the amendment it was stated that the houses Nos. 373 and 374 were also joint. Counter-claim for division of the said house was also made under Order VIII, Rule 6A, C.P.C. Counter-claim was valued at Rs. 10,000. Trial court/Civil Judge (Senior Division) Kanpur Dehat allowed the amendment on 26.3.2001. Against the said order Civil Revision No. 50 of 2001 was filed, which was also dismissed on 7.3.2002. Hence this writ petition.

After discussing several authorities I have held in Moinul Haq and Ors. v. IIIrd Additional District Judge, Basti and Ors. 2007 (1) ARC 421 : 2007 (5) AWC 5383, that counter-claim cannot be permitted to be filed after conclusion of evidence of both the parties. Para 5 of the said authority is quoted below:

Through amendment counter-claim for possession was also sought to be added in the written statement. By no stretch of imagination counter-claim can be permitted to be filed at the appellate stage. Under Order VIII, Rule 6A, C.P.C. it is provided that a defendant can file counter-claim against the claim of the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The Supreme Court while interpreting the said Rule has held that even after filing of written statement counter-claim can be filed. However it has also been held that counter-claim can be permitted to be filed only up till the stage when written statement could be filed. After conclusion of the evidence of both the parties there is no question of filing any counterclaim. In any case time to deliver defence expires latest by the decision of the suit. In the instant case counter-claim was sought to be filed in appeal, hence it was not at all permissible. Reference may be made to:

Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others,

Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs.,

Ramesh Chand Ardawatiya Vs. Anil Panjwani,

Mangulu Pirai Vs. Prafulla Kumar Singh and Others,

Parvathamma v. K. R. Lokanath AIR 1991 Kar 283;

MS Shoes East Ltd. and Others Vs. Debt Recovery Appellate Tribunal and Another, and

Hanumanthagouda v. Bandu alias Bandeppa Venkatesh Kulkarni and Ors. AIR 2001 Kar 10.

Recently Supreme Court in Rohit Singh and Others Vs. State of Bihar (Now State of Jharkhand) and Others, has again held that after conclusion of evidence counter-claim cannot be permitted to be filed. Latter half portion of paragraph 15 of the said authority is quoted below:

...Even assuming that they were properly impleaded, after they had filed their written statement, the suit had gone for further trial and further evidence Including that of the interveners had been taken, the evidence against closed and even arguments on the side of the interveners had been concluded. The suit itself was dismissed for default only because on behalf of the plaintiff there was a failure to address arguments. But the suit was subsequently restored. At that stage no counter-claim could be entertained at the instance of the interveners. A counter-claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so called counter-claim of defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the counter-claim so called, filed by defendants 3 to 17 has to be held to be not maintainable.

Accordingly both the impugned orders are patently erroneous is law. After framing of issues, conclusion of evidence and arguments, counter-claim could not be permitted to be raised.

Writ petition is therefore, allowed. Impugned orders are set aside. Trial court is directed to decide the suit very expeditiously, as it is quite old.