Ku. Nirmala Nanda VsRaj Kumar Nanda (Dead)

Heard on admission.

This petition has been filed against the order dated 18.01.2023 passed in Civil Suit No. 1-A/2013, whereby an application moved by the petitioners/defendants under Order 8 Rule 6A of CPC has been dismissed.

The facts of the case are that the plaintiffs/respondents instituted a civil suit for possession over suit land, compensation and permanent injunction against the defendants. The defendants have filed joint written statement and thereafter, issues were framed on 07.11.2014. The civil suit was decreed vide judgment and decree dated 15.09.2015 passed by the learned trial Court. Thereafter, First Appeal No. 308/2015 was preferred before this Court and after hearing both the parties, the case was remitted back to the trial Court vide judgment dated 05.07.2019. Para-29 of the said judgment reads as under:-

Therefore, we set aside the impugned judgment and decree and remand the matter to the Trial Court. In the result, the appeal is allowed. The impugned judgment and decree is set aside. The matter is remanded back to the Trial Court. The plaintiff shall be allowed reasonable opportunity to amend the plaint to seek appropriate relief for declaration of title. The defendants shall also be allowed reasonable opportunity to make consequential amendment in the written statement. After framing of additional issue on title, learned Trial Court shall allow both the parties to adduce additional evidence and pass judgment in accordance with law. The parties shall appear before the concerned Trial Court on 30/07/2019 and within a period of six months, learned Trial Court shall conclude the trial.

The plaintiff was granted an opportunity to amend the plaint seeking therein appropriate relief of declaration of title and therefore, an application was moved and same was allowed by the learned trial Court. The petitioners moved an application under Order 6 Rule 17 of CPC for consequential amendment and same was allowed vide order dated 18.01.2023. On the same date, an application was moved to prefer counter claim according to the provisions of under Order 8 Rule 6A of CPC, wherein the petitioners claimed right over 1/3rd share of the suit property on the basis of adverse possession.

The learned trial Court rejected the application and refused to accept the counter claim preferred after inordinate delay. It is also observed by the learned trial Court that there is no pleading in written statement to claim 1/3rd share over the suit property. Thereafter, additional issues were framed on 15.11.2019.

Learned counsel for the petitioners would submit that the order passed by the learned court below is erroneous in rejecting the application moved by the petitioners under Order 8 Rule 6A of CPC as there is continuing cause of action in their favour. It is also submitted that on the ground of delay a party cannot be refused his lost rights, particularly when the parties were permitted to carry out necessary and consequential amendment. Thus, the learned Senior Counsel would pray to allow the writ petition.

Per contra, learned counsel appearing for respondents 1 (a) to 1 (d) would oppose the submission made by learned counsel for the petitioners. They would submit that the petitioners, by way of counter claim, wanted to claim right over the suit property on the basis of adverse possession on the ground that they were in possession since 1971. They have placed reliance upon the judgments of Ram Nagina Rai & Anr. vs. Deo Kumar Rai (deceased) by Lrs & Anr., 2019 (13) SCC 324 and Ashok Kumar Kalra vs. Wing CDR Surendra Agnihotri & Others, (2020) 2 SCC 394. They would further submit that period of limitation to seek relief of possession, according to Article 58 of the Schedule appended to the Limitation Act is 3 years whereas in the present case, though the suit was filed in the year 2010, the petitioners filed counter claim in the month November, 2022 and therefore, the learned trial Court has rightly rejected the application moved by the petitioners.

I have heard learned counsel for the parties and perused the record with utmost circumspection.

It is not in dispute that earlier, civil suit was filed in the year 2010 and same was decreed on 15.09.2015. An appeal was filed and the matter was remitted back by this Court vide judgment dated 05.07.2019. An application was moved by the plaintiff for amendment and he was permitted to move application for amendment and thereafter, same was allowed by the court below. The petitioners moved an application for consequential amendment and same was also allowed. The petitioners filed counter claim on 16.11.2022 along with an application under Order 8 Rule 6A of CPC claiming therein relief of declaration on the basis of adverse possession and the learned trial Court rejected the application and refused to accept the counter claim.

Order 8 Rule 6A of CPC deals with counter claim of the defendant and same is reproduced herein below:-

Order 8 deals with written statement, set-off and counter-claim:

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 the 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.

6B. Counter-claim to be stated. – Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

6C. Exclusion of counter-claim. – Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

6D. Effect of discontinuance of suit. – If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter-claim. – If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.

6F. Relief to defendant where counter-claim succeeds. – Where in any suit a set-off or counter- claim is established as a defence against the plaintiffs claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

6G. Rules relating to written statement to apply. – The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.

From perusal of the provisions of Order 8 Rule 6A of CPC, it appears that:-

(i) defendant may claim his right against the plaintiff by way of counter claim;

(ii) any claim or right in respect of a cause of action accruing to the defendant against the plaintiff;

(iii) it can be claimed either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

In the present case, the matter was remitted back to the trial Court by the High Court on 05.07.2019 and thereafter again additional issues were framed on 20.01.2023. The issue No.10 pertains to “whether the defendants have acquired title on the basis of adverse possession after death of late Nemnath Nanda dated 27.04.1996 over ground floor of the suit house shown in the suit map”. Though this issue has been framed however, if it is found that the petitioners have perfected their right on the basis of adverse possession, even then they would not be able to claim right in absence of any relief sought in this regard by way of counter claim. Undisputedly, the additional issues were framed after rejection of application moved by the petitioners under Order 8 Rule 6A of CPC along with counter claim therefore, it cannot be said that the counter claim has been preferred after thought. The learned counsel for respondent No. 1 (a) & 1 (b) has placed reliance upon the judgments of Ram Nagina Rai (supra), Ravinder Kaur Grewal and Others vs. Manjit Kaur and Others, (2019) 8 SCC 729 and Maria Margarida Sequeria Fernandes & Ors. vs.  Erasmo Jack De

Sequeria (Dead) Through Lrs., (2012) 5 SCC 370, these judgments deal with the issue of adverse possession.

In the present case, the petitioners have claimed by way of counter claim, right over the suit property on the ground of adverse possession and issue No. 10 has already been framed by the learned trial Court in this regard and they have to prove the requisites of adverse possession in accordance with law settled by the Hon'ble Supreme Court in above mentioned cases.

The learned counsel for respondents 1 (a) and 1 (b) has placed reliance upon the judgment in the matter of Ashok Kumar Kalra (supra) and in this case, clarification was sought from larger Bench of the Supreme Court, whether a counter claim could be filed after filing of the written statement and it was answered that the whole scheme of Order 8 CPC unequivocally points out at the legislative intent to advance the cause of justice by placing embargo on the belated filing of written statement, set-off and counterclaim.

In Ashok Kumar Kalra (supra), the Hon'ble Supreme Court has held in paras- 17, 18, 19, 20 & 21 as under:-

The time limitation for filing of the counter claim is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents; further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 Rule 6-A Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time-barred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order 8 Rule 6-A.

As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6-A in Order 8 CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filing of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the court has no power. The courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to CPC.

In this regard having clarified the law, we may note that Mahendra Kumar v. State of M.P., (1987) 3 SCC 265 needs to be understood and restricted to the facts of that case. We may note that even if a counterclaim is filed within the limitation period, the trial court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. The discretion vested with the trial court to ascertain the maintainability of the counterclaim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting a counterclaim.

We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognise the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognised as well (refer to Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344).

We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

(i) Period of delay.

(ii) Prescribed limitation period for the cause of action pleaded.

(iii) Reason for the delay.

(iv) Defendant's assertion of his right.

(v) Similarity of cause of action between the main suit and the counterclaim.

(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.

In the light of the judgments passed by the Hon'ble Supreme Court and the facts of the present case, it appears that in the year 2010 civil suit was filed and same was decreed; first appeal was preferred before the High Court where the matter was remitted back; an application was moved for amendment by the plaintiffs; an application for consequential amendment was moved by the petitioners; both the applications were allowed; thereafter on 16.11.2022 application for counter claim was filed by the petitioners; the counter claim was filed after lapse of 12 years; cause of action has been shown accruing from the year 1971; reason for delay has not been assigned and in the written statement which was filed on 15.04.2011 there was no pleading with regard to adverse possession, therefore, in the opinion of this Court, the learned court below has not committed any infirmity in passing the impugned order.

Consequently, the writ petition being devoid of merit is liable to be and is hereby dismissed at the admission stage.