Razia Khatoon vs Shahunus and Others

Navaniti Pd. Singh, J.—Heard the parties. The present application is by the plaintiff against an order by which the trial Court has allowed the defendant second set to file a counter claim in the suit purporting to be in terms of Order 8, Rule 6(A) of the Code of Civil Procedure. The suit was filed in the year 2001. The defendants had filed their written statement on 16.5.2002. They admittedly did not raise any counter claim therein. Issues were framed, the trial begun. Plaintiff examined his witness and closed his case. The defendant started his evidence which is disputed by the plaintiff. At this stage on 11.2.2004 an amendment to the written statement was sought for. The amendment was in the nature of a counter claim.

Having heard the counsel and considered the matter with reference to Order 8 Rule 6(A) of the CPC it is no doubt correct that a counter claim as per the provision of Order 8 Rule 6(A) of the CPC is required to be filed along with written statement. This as been held by the Apex Court not to mean that it cannot be filed subsequently or separately. This does not mean that the counter claim can be filed at any point of time even after trial has begun. The object of permitting a counter claim is to resolve litigation as between the parties in one stroke to avoid multiplicity of proceedings between the same parties. The counter claim is in the nature of a counter suit. Normally, a party is expected to institute a suit for any relief he claims. This rule is an exception where in a proceeding instituted by the plaintiff where (sic-for?) relief against the defendant, the defendant is permitted to seek relief independently against the plaintiff. The defendant has to be vigilant in exercising his right. In the present case the issues already having been framed, witnesses already having been examined, plaintiff''s case already having been closed, this is not the appropriate stage for the Court to have entertained a counter claim. I, accordingly, set aside the impugned order and allow the civil revision application. It is however, observed that if otherwise permissible, the defendant is free to institute a separate proceeding for establishing his claim but he cannot be permitted to sabotage the present proceeding.