Lodeshwar Shukla vs Additional District Judge, Lucknow and others

S.C. Chaurasia, J.—This civil revision has been preferred against the order and formal order dated 11042008 passed by the learned Additional District Judge, Court No. 1, Lucknow in Civil Appeal No. 257 of 2003, Lakhan Lal Versus Lodeshwar Shukla and Others, whereby, he rejected the application A93 for amendment in the written statement.

The brief facts, giving rise to this revision, are that the plaintiff/opposite party no. 2, Sri Lakhan Lal, filed a suit for permanent injunction against the defendants, Lodeshwar Shukla and others, on 28011994, which was registered as O.S. No. 62 of 1994. The defendants filed the written statement and contested the suit. After considering the evidence produced by both the parties, the learned VIth Additional Civil Judge(Junior Division) Court No. 38, Lucknow, dismissed the suit vide judgment and decree dated 10092003. The plaintiff, Lakhan Lal, preferred a Civil Appeal No. 257 of 2003, Lakhan Lal Vs Lodeshwar Shukla and others, against the said judgment and decree dated 10092003, in the court of the District Judge, Lucknow, which was transferred to the court of the Additional District Judge, Court No. 1, Lucknow.

During the pendency of the appeal, an application under Order VI Rule 17 readwith section 151 C.P.C., was moved on behalf of the defendant/respondent no.1 for amendment in the written statement with the prayer that paras nos. 14(a) to 14 (e) may be added in the written statement to the effect that after dismissal of the plaintiff''''s suit, he alongwith his associates has taken forcible possession over the property in suit on 14092003, and the status of the plaintiff is not less than a trespasser having no right, title or authority to remain in possession over the said property. The defendant no. 1, being the absolute owner of the property in suit, is legally entitled to recover the possession from the plaintiff and as such, he is making his counter claim for recovery of possession. The cause of action accrued to the defendant no. 1 on 1409 2003 for filing counter claim and thereafter, on each and every date. That a decree for mandatory injunction by way of counter claim may be passed in favour of the defendant no. 1 directing the plaintiff to return back the possession of the property in suit after removing his belongings. The defendant no. 1 has sought some consequential amendments also in the written statement. The plaintiff has filed his objection against the said application and denied the defendants'' allegations made in the amendment application. His objection is that the defendant no. 1 has not assigned any reason as to why the application was not moved for about five years, after delivery of judgment by the learned trial court. In fact, after the decision in the said suit, the defendant no. 1 has tried to take forcible possession illegally over the property in suit and in the said incident, the appellant sustained grievous injuries. The F.I.R. was lodged against him and after investigation, chargesheet was filed against the defendant no. 1 and he is facing trial. The plaintiff/appellant, was/is in possession over the property in suit. The counter claim filed by the defendant no. 1 at this stage cannot be allowed legally. If the defendant no. 1 is not in possession over the property in suit, he may institute a suit for possession against the plaintiff.

After considering the record and hearing the learned counsel for both the parties, learned Additional District Judge, Lucknow, has rejected revisionist''s application A93 vide order dated 11042008. Feeling aggrieved by the said order and formal order, the defendant/respondent no. 1, has preferred this revision.

I have heard Sri P.S.Mehra, learned counsel for the revisionist, Sri Rajan Roy, learned counsel for the opposite party no. 2 and perused the record.

The learned counsel for the revisionist has submitted that the cause of action has accrued to the revisionist after dismissal of the suit and the appeal is continuation of the suit. He has further submitted that no limitation is prescribed for moving the amendment application and hence, the application for amendment in the written statement has been moved and there is no necessity to file a fresh suit. He has further submitted that the learned Additional District Judge, has committed illegality in exercise of its jurisdiction in rejecting the amendment application and hence, the impugned order is liable to be set aside.

Learned counsel for the opposite party no. 2 has drawn my attention towards Order VIII Rule 6A, C.P.C. and has submitted that no counter claim can be permitted in respect of the cause of action accrued after filing of the written statement. He has further submitted that no reason has been assigned for moving the amendment application after about five years from the date, the alleged cause of action has accrued to the defendant no.1/revisionist. His submission is that the order passed by the learned Additional District Judge, is perfectly valid and it calls for no interference. In support of his contentions, he has placed reliance on the following decisions of the Hon''ble Supreme Court:

(1987) 3 Supreme Court Cases 265, Mahendra Kumar and another Versus State of Madhya Pradesh and Others.

(1996) 4 Supreme Court Cases 699, Jag Mohan Chawla and Another Versus Dera Radha Swami Satsang and Others.

The Order VIII Rule 6A, C.P.C. Provides as under:

�Counterclaim by defendant(1) A defendant in a suit may, in addition to his right of pleading a setoff under rule 6, set up, by way of counterclaim 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 counterclaim is in the nature of a claim for damages or not:

Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counterclaim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.�

In the case of Mahendra Kumar and another (Supra), Hon''ble Supreme Court in para 15 of its judgment has held as follows:

�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 counterclaim 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 counterclaim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counterclaim 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 counterclaim after the filing of the written statement, the counterclaim was not maintainable. The finding of the High Court does not get any support from Rule 6A (1) of the Code of Civil Procedure. As the cause of action for the counterclaim had arisen before the filing of the written statement, the counterclaim 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 sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counterclaim, 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 counterclaim.�

In the case of Jag Mohan Chawla and another(Supra), Hon''ble Supreme Court has held that the words � any right or claim in respect of a cause of action accruing with the defendant� would show that the cause of action from which the counterclaim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires.�

In the instant case, the amendment application was moved on behalf of the defendant/revisionist in the appellate court for setting up the counterclaim in respect of the alleged cause of action accrued to him on 14092003, that is, after dismissal of the O.S. No. 62 of 1994 on 10092003.The Civil Appeal No. 257 of 2003 was preferred against the said judgment and decree dated 10092003 on 22092003. The application for amendment has been moved on 30012008. No reason has been assigned in the amendment application as to why there has been delay of about 4� years in moving the said application. The appeal may be continuation of suit and no limit may have been prescribed for moving the application for amendment, but, in the present case, the defendant no. 1 wants to set up the counterclaim in respect of the alleged cause of action accrued to him after dismissal of the suit, which is governed by Order VIII Rule 6A, C.P.C.

From the bare perusal of Order VIII Rule 6A., C.P.C., it is clear that the defendant may set up a counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accrued to him against the plaintiff 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 other words, the defendant has no right to set up a counterclaim in respect of a cause of action accrued to him against the plaintiff after filing of his written statement or after expiry of the time prescribed for filing of the written statement. This view has also been fortified by interpretation of Order VIII Rule 6A, C.P.C. made by the Hon''ble Supreme Court in the cases as quoted above.

In the instant case, the defendant no. 1 has filed the written statement on 14071997. The alleged cause of action has accrued to the defendant no.1/revisionist on 14092003, after dismissal of the O.S. No. 62 of 1994. Thus, it is clear that the alleged cause of action accrued to the defendant no. 1 after filing of his written statement. In view of Order VIII Rule 6A(1) C.P.C., no counterclaim can be set up by the defendant in respect of the cause of action accrued to him after filing of his written statement or after expiry of the time limited for filing written statement.

After considering the record and the impugned order dated 11042008, I am of the opinion that the learned Additional District Judge, Lucknow, has not committed any illegality or irregularity in exercise of its jurisdiction in rejecting the defendant''s amendment application. The order passed by the learned Additional District Judge, is perfectly valid and it calls for no interference .

In view of the foregoing discussions, I am of the view that this revision is devoid of merit and consequently, it is dismissed.