Ramalatchumi Ammal vs T. Jeevanantham

Defendant in O.S.No. 576 of 1992 on the file of the Additional District Munsif Court, Ambasamudram is the revision petitioner.

Respondent herein filed a suit for specific performance of an agreement for sale alleged to have been executed by the petitioner herein. The suit

was filed before end of 1992. Written statement was also filed by the petitioner.

After issues were suggested, the case was included in the list. Plaintiff was examined as P.W.1 and when the case was posted for evidence of

P.W.2, an application was filed in I.A.No. 426 of 1997 seeking permission to file counter claim. In the affidavit in support of the application, it is

averred that she wanted to declare the agreement as void and on 21.7.1997, since the plaintiff trespassed into the property, she wanted recovery

of possession in the suit itself.

The same was seriously opposed by the plaintiff and by the impugned order the lower court rejected the permission sought for. That means the

counter claim was refused to be entertained.

The same is challenged in this revision.

''Notice of motion'' was ordered. An interim stay for a period was also granted by the learned Judge of this Court. After the respondent entered

appearance. I heard the counsel on both sides.

The only question that requires for consideration is, whether the order refusing to entertain counter claim is justified or not.

Under Order 8, Rule 6A/(1) enables the defendant to file a counter-claim. It read thus,

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, 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 nots:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

The lower court on two grounds held that the counter claim cannot maintained (1) the written statement is already filed and consequently the cause

of action is either barred or cause of action arose after the filing of the written statement and hence cannot be subject of a counter claim.

In Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, . Their Lordships considered this question in paragraph 15 of the

judgment. Their Lordships said thus:

The next point that remains to be considered is whether Rule 6-A of Order 8 of the CPC bars the filing of a counter claim after the filing of a

written statement. This point need not detain us long, for Rule 6-A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant

after he had filed the written statement. What is laid down under Rule 6-A(1) is that a counter-claim 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 counter-claim 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 6-A(1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not

maintainable. The finding of the High Court does not get any support from Rule 6-A(1) of the Code of Civil Procedure. As the cause of action for

the counter- claim had arisen before the filing of the written statement, the counter-claim 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 counter-claim, which is treated as a suit u/s 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 counter-claim.

In Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, , the question that arose for consideration was, whether a

counter-claim also should be on the same cause of action or whether a counter-claim can be based on a different cause of action. While

considering the same, in para 5 of the judgment, Their Lordships said, the counter-claim can be on different cause of action. Their Lordships held

thus:

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

counter-claim 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 Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs., . Their Lordships reiterated the principle in a Mahendra Kumar

and Another Vs. State of Madhya Pradesh and Others, and said,

If the cause of action had arisen before or after the filing of the suit, and such cause of action continued up to the date of filing written statement or

extended date of filing written statement, such counter-claim can be filed even after filing the written statements.

On the basis of these decisions, we have to consider whether the impugned orders are correct or not. The suit itself was laid as early as on

24.12.1992. The plaintiff has alleged that the defendant executed an agreement for sale in agreeing to sell the plaint property for a total

consideration of Rs. 10,000 out of which Rs. 5,000 she was paid as advance. In para 3 of the written statement, she denies having executed such

a deed. In para 2 of the affidavit seeking permission to file counter-claim, she said that the denial alone will not be sufficient and she want to get a

declaration that the document dated 22.1.1992 is void and not binding on her. It is further said para 5 that on 21.7.1997, the plaintiff trespassed

into the property and therefore she wants to recover the property from him.

As held in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, , to file a suit for declaration that the document is void,

the period of limitation is three years when their right to sue accrues. Even if we consider the date of plaint as a cause of action, that contention is

barred. Therefore, counter-claim cannot be had for getting a declaration. I am not concerned whether such a declaration is necessary in this case

when the petitioner denies the execution of the agreement. Regarding the claim for recovery of property on the basis of trespass, the cause of

action is only on 21.7.1997, that is years after filing the written statement only. The cause of action which was in existences till the filing of the

written statement on can be subject matter of a counter-claim. A cause of action which as arisen after filing the written statement cannot be subject

matter of the counter-claim. The petitioner has other remedy provided under law instead of seeking a counter claim in this case.

It could be seen, the counter claim is belated and it is also filed without any bona fides. Evidence of P.W.1 has been completed and P.W.2''s

evidence is to begin, and filing this counter-claim at fag and end of the trial, only shows the lack of good faith on the petitioner.

In view of the law declared by the Hon''ble Supreme Court and also taken into consideration the facts and circumstances of the case, it has to

be held that the order of the lower Court is correct and do not call for any interference.

In the result C.R.P is dismissed. No costs. Consequently, C.M.P.No. 18411 of 1977 is closed.