Shantesh Gureddi vs Smt. Thayamma

G.C. Bharuka, J.—This civil revision petition has been placed before this Division Bench for resolving the conflict of opinions expressed by

the two learned Single Judges of this Court in the cases of Hanumanthasastri Mahadevasastri Puranik and Another v Madhava Rao and Others

and Smt. Parvathamma Vs. K.R. Lokanath and others, , regarding the stage in a civil suit upto which a defendant can set up a counter-claim

against the plaintiff under Order 8, Rule 6-A of the Code of Civil Procedure, 1908 (in short ''the CPC'').

This revision petition has been filed by the defendant in O.S. No. 281 of 1993 against the order dated 27-8-1996 by which the Trial Court has

rejected I.A. No. 2 filed by him seeking amendment to the written statement purporting to set up an alleged counter-claim on the ground that the

same is not permissible since it has been filed after the framing of the issues and commencement of the evidence.

The plaintiff (respondent herein) has filed the said suit for redemption of the mortgaged suit property and delivery of possession thereof. The

case of the plaintiff is that the suit property was mortgaged to one B.R. Patil as security for loan of Rs. 15,000/- and possession thereof was

delivered to the latter, who in turn, assigned the said mortgage in favour of the petitioner-defendant under a registered assignment deed dated 3-5-

1984. The petitioner filed his written statement contesting the suit raising the defence to the effect that he is in occupation of the suit property as a

tenant on a monthly rent of Rs. 1,000/- and that the mortgage transaction in favour of the said B.R. Patil and assignment of the mortgage by the

latter in defendant''s favour under the registered assignment deed were all sham transactions entered into between the parties merely to circumvent

the restrictions and rigours of the provisions of the Karnataka Rent Control Act. Thereafter, on 27-6-1994, at an advanced stage of the suit

proceedings, when plaintiff''s evidence was in progress, petitioner-defendant made I.A. No. 2 purporting to be under Order 6, Rule 17 of the

CPC for amendment of written statement to set up counter-claim for a decree against respondent-plaintiff to declare that the defendant is a tenant

of the schedule premises under the plaintiff and also for permanent injunction to prevent him from dispossessing the defendant from the schedule

premises except by due process of law and for costs etc.

Admittedly, when petitioner made his I.A. No. 2 in the Court below the plaintiff''s evidence had already commenced and the same was being

recorded. Therefore, by its impugned order, the Trial Court by following the pronouncement of this Court in Parvathamma''s case, supra, to the

effect a counter-claim if not set up in the written statement then it has to be set up before recording of evidence commences, rejected petitioner''s

I.A. No. 2.

It cannot be seriously disputed that before the insertion of Rules 6-A to 6-G in Order 8 in the First Schedule to the CPC by CPC (Amendment)

Act, 1976, there was no law, statutory or otherwise, permitting the Courts to entertain counterclaims preferred by defendant in a civil suit. This

aspect of law has been considered by the Supreme Court in the case of Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and

Others, . In para 10 of the judgment, their Lordships approved the view taken by the Calcutta High Court in the case of Gour Chandra Goswami

and Another Vs. The Chairman of the Commissioner of the Nabadwip Municipality, , on the above aspect and held that.--

The learned judges correctly pointed out that a counter-claim is the creation of the statute and in the absence of a provision in Order 8 of the CPC

for a counter-claim apart from the relief specified in Rule 6 thereof, a counter-claim as such was inadmissible"".

After holding as above, in the following paragraph, their Lordships further held that nonetheless there was no embargo on the Court treating a

written statement or a part thereof describes as a counter-claim as a cross suit.

Subsequently, the Parliament, by taking note of the law as noticed by the Supreme Court, has inserted Rules 6-A to 6-G in Order 8 of the CPC

conferring a specific right on a defendant to set up a counter-claim against claim of a plaintiff. These rules read as under:

6-A. 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.

6-B. Counter-claim to be stated.--When 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.

6-C. 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.

6-D. 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.

6-E. 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.

6-F. Relief to defendant where counter-claim succeeds.-- Where in any suit a set-off or counter-claim is established as a defence against the

plaintiff''s 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.

6-G. 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.

Rule 9 of Order 8 is also relevant for the present purpose, which reads thus.--

Subsequent pleadings.--No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-

claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a

written statement or additional written statement from any of the parties and fix a time for presenting the same.

In the context of Rule 6-A(1) of Order 8 of the CPC, in the case of Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, ,

a question had arisen before the Supreme Court as to whether counterclaim can be filed after filing of written statement by defendant. Their

Lordships have answered the above question in the affirmative in the following words that.--

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 CPC. 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, 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), Limitation Act, had 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"".

The above view has been followed with approval by the Supreme Court in its recent judgment in the case of Smt. Shanti Rani Das Dewanjee

Vs. Dinesh Chandra Day (dead) by LRs., . In this case, an appeal was taken to the Supreme Court against judgment of the Calcutta High Court

taking the view that even after filing of written statement, a counter-claim can be presented provided that the cause of action for filing the same had

arisen before or after institution of the said suit and such cause of action had continued till filing of written statement. But the appellant before the

Supreme Court raised a contention that once written statement is filed, such application for counter-claim under Order 8, Rule 6-A is ex facie

barred. The plea was negatived by the Supreme Court by holding that.--

In our view, the impugned decision does not warrant interference. Such question was specifically raised before this Court in Mahendra Kumar''s

case, supra. It has been held by this Court that right to file a counter-claim under Order 8, Rule 6-A of the CPC is referable to the date of accrual

of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing

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

The decision of the Supreme Court as noticed above, no doubt very clearly lays down that it is permissible for the defendant to file counter-

claim even subsequent to filing of written statement subject to the conditions laid down under Order 8, Rule 6-A of the CPC as noticed above, but

neither in the said judgment nor under the statutory scheme envisaged in Rules 6-A to 6-G of Order 8 of the CPC for filing counterclaim there is

any clear stipulation as to upto which stage in a civil suit counter-claim can be preferred by the defendant i.e., whether it should be before framing

of issues or before commencement of evidence or it can be filed even at the stage of arguments.

The above question had specifically fallen for consideration before this Court in Parvathamma''s case, supra, wherein K.A. Swamy, J., held

that counter-claim, if not set up in the written statement, then it has to be set up before issues are framed, but at any rate before recording of

evidence commences. The reasons which prevailed with him for taking the said view were.--

(a) Permitting filing of counter-claim at a belated stage will cause great prejudice to the plaintiff in a suit since he will not be able to adduce

evidence by anticipating any counter-claim;

(b) The scheme under the Rules 6-A to 6-G of Order 8 of the CPC does not permit by necessary implication such course; and

(c) It would lead to protracting the trial and defeat the very object for which right to file counter-claim has been given.

Similar question had arisen in Hanumanthasastri Mahadevasastri Puranik''s case, supra, wherein K. Shivashankar Bhat, J., in para 15 had held

that.--

The counter-claim in effect is a claim in a cross suit. The newly added provisions of Order 8, Rule 6-A and other connected provisions enable the

plaintiff to file his written statement to the counter-claim. The object of Order 8, Rule 6-A, obviously, is to reduce the multiplicity of proceedings, in

respect of the claim involved in the plaint and provides for a single trial in respect of rival claims. When the nature of the plaint claim and the

defence pleaded in the written statement, substantially covers the relief sought for by the defendant by way of counter-claim, and the trial of the suit

has not reached a stage requiring reopening of the trial, there is no reason to disallow the application of the defendant, seeking leave to amend the

written statement and put forward a counter-claim"".

Therefore, even in Hanumanthasastri Mahadevasastri Puranik''s case, supra, it was clearly held that counter-claim can be permitted only if the

suit has not reached the stage requiring reopening of trial meaning thereby the two judgments are consistent atleast on this aspect that defendant

does not enjoy any unrestricted or unbridled right to file counter-claim at any stage of the trial till the pronouncement of the judgment.

In our considered opinion, keeping in view the statutory provisions and legal pronouncements as noticed above, the view taken by K.A.

Swamy, J., appears to be quite appropriate and consistent with legal principles requiring fair trial which ensure avoidance of undue hardship to the

parties to a proceedings, its conclusion with reasonable speed and fair opportunity to the plaintiff to appropriately defend himself against a counter-

claim.

It cannot be disputed that the right to prefer counter-claim has been statutorily granted to defendant in order to avoid multiplicity of suits

between the same parties and the same subject-matter though based on different causes of action and grounds. Such a procedure helps rival

parties to get their dispute adjudicated upon in the same proceed- ings by leading same set of evidence and having common arguments. Therefore,

one of the purposes of permitting filing of counter-claims is to ensure speedy justice by avoiding procedural repetitions and technicalities. But, if the

defendant is permitted to raise a counter-claim even at a belated stage of trial i.e., after issues are framed and recording of evidence has

commenced, then it will amount to reopening of trial and will not only lead to wastage of judicial hours but it will also put the plaintiff to unnecessary

litigation expenses and will necessarily delay the disposal of his case and that too only because of the defendant is not vigilant about raising of his

counter-claim by availing the earliest appropriate opportunity. It is well settled principle that the Courts will not help those persons, who are guilty

of laches. The legal maxim is vigilan tibus non dormientibus leges subveniunt (the vigilant, not the sleeping, are aided by the laws). It has to be

remembered in this context that if the cause of action survives, then even otherwise the right of defendant to file a separate suit is not taken away

and therefore no irreparable injury or loss will cause to him.

For the above reasons, we hold that the defendant can file his counter-claim even after filing of written statement but it should be before the

commencement of the evidence in the trial so that the issues are settled in relation to the counter-claim as well granting fair opportunity to the

plaintiff to adduce evidence in that regard also.

After having answered the question in the present revision petition which had been placed before us at the instance of the learned Single Judge,

who felt that there was some divergence of opinion on the issue involved, we thought it fit to dispose of the very revision petition by ourselves since

we have heard the revision on merits and keeping in view the interest of justice and speedy disposal of the suit.

Accordingly, coming to the facts of the present case, in our considered opinion, the purported counter-claim was preferred before the Trial

Court with the mala fide intention of protracting the trial because the plea of the petitioner that he is in possession of the suit property is his defence

in written statement which is already an issue before the Trial Court pending adjudication. This plea therefore cannot by any stretching of the legal

principles be taken as a counter-claim. In this view of the matter as well, the rejection of the I.A. filed by the petitioner cannot be interfered with in

a revision u/s 115 of the CPC.

Before parting, we may further observe that the disposal of the suit in question has already been substantially delayed. Therefore, we direct that

the Trial Court should dispose of the suit within three months from the date of receiving the certified copy of this order, if necessary, by taking up

the trial on day-to-day basis.

With the said observations and directions, the revision petition is dismissed with costs of Rs. 1,500/-.