Polymers Industries vs Kiritbhai Ratilal Shah

M.D. Shah, J.—By this petition under Articles 226 and 227 of the Constitution of India, the Petitioner -original Plaintiff challenges order dated 8-9-2010 passed below Application Ex.51 in HRP Suit No. 2180 of 2004 by the learned Judge, Small Causes Court No. 3, Ahmedabad, whereby the application of the Respondent-original Defendant seeking permission to file counterclaim was allowed.

Facts in short are that the Plaintiff-tenant filed a suit being HRP Suit No. 2180 of 2004 seeking permanent injunction praying to restrain the Defendant-landlord from taking possession of the suit premises. Issues started to be framed vide Ex.23. Plaintiff filed an affidavit in chief examination by way of Ex.30 on 3-12-2007. Defendant did not cross examine witness of the Plaintiff and hence, his right to cross-examination was closed. However, said right was reopened on his request by way of an application. The Defendant vide an application Ex.51 sought permission to file counterclaim in the said suit which was allowed by order dated 8-9-2010 by the learned Small Causes Judge which is impugned in the present petition.

Heard learned advocate, Mr. J.M. Patel for the Petitioner and the Respondent as party-in-person.

It is submitted by Mr. Patel that by permitting the Defendant to file counterclaim, the learned Judge has gone contrary to the provisions of Order 8 Rule 6-A of CPC . It is further submitted that as the Defendant wanted to delay the proceedings of the suit, the counterclaim has been filed. Drawing attention of this Court towards Order 8 Rule 6-A of Code of Civil Procedure, it is submitted that the learned Judge was unjustified in allowing the application Ex.51 as said counterclaim was in respect of cause of action accruing in his favour after filing of written statement. Hence, said counterclaim ought ought not to have been taken on record. It is further submitted that relief for recovery of so-called arrears of rent being prima facie barred by limitation, counterclaim containing the said relief could not have been taken on record. It is further submitted that permission to file counterclaim after framing of issues could not have been granted by the trial court.

Respondent, who appeared as party-in-person, submitted that the trial court has rightly permitted him to file counterclaim and no illegality is committed by the trial court in allowing the application Ex.51. He, therefore sought to dismiss the present petition. He also submitted that the Plaintiff has been given liberty by the court below to file written statement in view of the counter claim of the Defendant.

Having gone through the rival contentions of the parties, it seems that an additional right, which is created by permitting the Plaintiff to file counter claim, may be exercised in respect of any right or claim. However, the same cannot be permitted to be filed after the issues are framed. The Apex Court in the case of Rohit Singh and Others Vs. State of Bihar (Now State of Jharkhand) and Others, has held in paragraph 15 as under:

A counter-claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counter-claim 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.

In view of the ratio laid down by the Apex Court in the aforesaid reported judgment, counterclaim cannot be permitted to be filed after the issues are framed. Therefore, the trial court has committed error in allowing the application Ex.51. Thus, this Court is of the opinion that as the counterclaim has been permitted to be filed after the issues are framed, the order passed by the court below is required to be quashed and set aside and the petition requires to be allowed.

This petition is allowed. Order dated 8-9-2010 passed below Application Ex.51 in HRP Suit No. 2180 of 2004 by the learned Judge, Small Causes Court No. 3, Ahmedabad, is quashed and set aside. Rule is made absolute.