Sri Ganesh Chandra Ghosh & Ors, vs Sri Ajit Kumar Ghosh and Ors.

Challenge in this revisional application is the order no. 24 dated 25th September, 2006 passed by learned Civil Judge(Sr. Divn.), 2nd Court, Howrah in Title Suit no. 79 of 2004 whereby and whereunder learned trial Judge has allowed the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement and thereby has allowed the defendants to incorporate a new case of the defendant in the form of counter claim as contemplated under Order 8 Rule 6A of the Code of Civil Procedure on the ground that such amendment has been allowed to prevent the multiplicity of the proceedings and that the question of limitation ought to be decided only after ascertaining the date of accrual of cause of action. The plaintiffs have challenged such order on the ground that learned trial Judge did not consider the wisdom of the legislature in incorporating Order 8 Rule 6A of the Code of Civil Procedure while allowing such prayer for incorporation of counter claim whereby the defendant has virtually stated that the properties acquired by one Khadomoni Dasi was the Benami Property of other members of the family and that the cause of action accrued long before the filing of this suit yet learned trial Judge did not consider the said points of law at the time of allowing such application for amendment of the written statement.

Learned Advocate for the petitioner contended that some properties were acquired by Khadomoni Das way back in the year 1944 and thereafter Khadomoni Dasi transferred such property to various persons. Khadomoni Dasi sold her 1/3rd share to one Promothonath Ghosh.

Promothonath Ghosh filed a suit for partition against other co-owners in the Court of the then Additional Sub-Ordinate Judge, Second Court, Howrah being TS no. 37 of 1952 which was decreed finally allotting 1/3rd demarcated share of Shri Promothonath Ghosh measuring 5 Katha 3 Chittakh and 22 Sq. Ft. out of total 14 Katha 13 Chittakh 9 Sq. Ft.

In order to partition the joint family property a suit for partition was filed by the petitioners being TS no. 79 of 2004 in the Court of learned Civil Judge(Sr. Divn.), 2nd Court at Howrah. Defendant no. 1 duly appeared in that suit and filed written statement in the month of February, 2005. Subsequently, defendant no. 1 has filed another application for amendment of his written statement under Order 6 Rule 17 of the Civil Procedure Code for introducing a counter claim in respect of some other plots on the ground that plot no. 6327 and pathway measuring about 2 satak of lands situated at plot no. 6328 under Khatian No. 2819 JL no. 14 of Mouja- Bali, PS- Bali, District- Howrah were purchased from the income of Hindu Undivided Joint Family income through money execution case no. 314 of 1944 and that for a decree of declaration that the deed of gift executed by Khadomoni Dasi in favour of one Kanailal Ghosh on 07.02.1968 and registered on 09.02.1968 is void and inoperative and that the deed of gift dated 28th July, 2003 executed by Kanailal Ghosh is void and in-operative and that the deed executed by Biskha Sundori Devi on 3rd September, 1984 in favour of one club named after Sakti Sangha is inoperative and that the deed being no. 471 for the year 1968 registered on 9th February, 1968 is void ab-initio.

Learned Advocate appearing on behalf of the petitioner contended that learned trial Judge could not appreciate the true import and purport of Order 8 Rule 6A of the Code of Civil Procedure and thereby misdirected himself in allowing such prayer of the opposite parties. It is further submitted that by way of such counter claim the defendant has tried to ventilate that plot no. 6327 and 6328 were purchased in the name of Khadomoni Dasi though she was not the actual owner of such property and thereby wanted to introduce the case of Benami transaction. Such plea of the opposite party/defendant ought to have been rejected by learned trial Judge in view Section 4 of Benami Transaction(Prohibition Act) 1988. Secondly, though there is no time limit stipulated in Order 8 Rule 6A of the Code of Civil Procedure yet it has been categorically stated in such order of Code of the Civil Procedure that the plea of counter claim has to be filed either at the time of filing the written statement or before the time limited for delivering his defence has expired.

Learned Advocate appearing on behalf of the petitioner contended that defendant no. 1 had filed his written statement in the month of February, 2005 and contrary to the provisions of Order 8 Rule 6A has filed such prayer for introducing counter claim in the month of December, 2005. Therefore, learned trial Judge was not at all justified in passing such order being no. 24 dated 25th September, 2006 in TS 79 of 2004. In support of his contention learned Advocate for the petitioner has relied on the following decisions: 1.2011(3) SCC 556(Samittri Devi & Anr. Vs. Sampuran Singh & Anr.).

2008(13) SCC 179 (Bollepanda P. Poonacha & Anr. Vs. K. M. Madapa).

3.1999(3) Cal LT 388(Cal)(M/S. Oriental Ceramic Products Vs. Calcutta Municipal Corporation).

Learned Advocate appearing on behalf of the contesting respondents contended that amendment of the written statement has to be considered in a liberal way and to that effect law has been well settled by very many judicial pronouncements of the Hon''ble Supreme Court. Secondly, point of limitation cannot be decided at the time of filing such application for amendment of the written statement and to that effect learned trial Judge has rightly relied on a decision reported in 1997(8) SCC 174 (Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day).

Thirdly, point of limitation has been deliberately excluded by the legislature while incorporating Order 8 Rule 6A in the Civil Procedure Code and therefore learned trial Judge was perfectly justified in ignoring the point of limitation by relying on the decision mentioned here in above. It is further submitted that the petitioner will get appropriate opportunity for filing written statement against such counter claim of the opposite party and thereby multiplicity of proceeding has been avoided by allowing the opposite party to amend the written statement by incorporating the counter claim.

It is apparent from the facts, as unfolded in the pleadings of the parties to the case, that some properties were purchased in the name of Khudomoni Dasi way back in the year 1944 and Khadomoni Dasi has transferred some of such properties to one Promothonath Ghosh. Promothonath Ghosh partitioned his share of property by filing a suit for partition and the suit was accordingly decreed. Secondly, some properties were also transferred in favour of one club named after Sakti Sangha in the year 1968. Some properties were also transferred in the year 1984. It is therefore apparent from such facts that the opposite party/defendant was aware of such transactions long before filing of this suit under reference. Secondly, declaration has been sought for to the effect that the aforesaid deeds be declared void and inoperative. I fail to understand how such prayer for declaration simpliciter is maintainable long after giving effect to such registered deeds. Secondly, point of limitation definitely crops up as soon as the prayer for declaration would be taken up for hearing by the trial Court. Learned trial Judge did not look into the prayer for declaration at the time of allowing such prayer for amendment of the written statement. It is apparent from such prayers that such prayers are barred by law of limitation. No such declaration can be prayed for after expiry of nearly 50 years from the date of actual acquisition and transfer of such properties. Secondly, it has been well settled by the Apex Court in the decision reported in 2011(3) SCC 556(Samittri Devi & Anr. Vs. Sampuran Singh & Anr.) that Section 4 of Benami Transaction(Prohibition Act) 1988 is prospective in operation. This suit being TS 79 of 2004 has been filed in the year 2004 and therefore in view of absolute prohibition as contained in Section 4 of the Benami Transaction (Prohibition Act) 1988 the defendant cannot take the plea of Benami in a circuitous way and such prayer of the defendant/ opposite party is barred under the aforesaid Act. It is apparent from the counter claim of the defendant/opposite party that in a circuitous way the defendant/opposite party has tried to introduce the factum of holding such property by Khadomoni Dasi on behalf of other family members. Such prayer also cannot be accepted in view of absolute prohibition as contained under Benami Transaction and Prohibition Act, 1988. Admittedly, no limitation has been prescribed under Order 8 Rule 6A of the Code of Civil Procedure. It has been observed by our Apex Court as well as our High Court in the decisions reported in 1999(3) Cal L T 388(Cal)(M/S. Oriental Ceramic Products Vs. Calcutta Municipal Corporation) and 2008 (13) SCC(Bollepanda P. Poonacha & Anr. Vs. K. M. Madapa) that if the cause of action arose long before filing of the written statement, the Court should not allow to amend the written statement to introduce counter claim contrary to the provisions stipulated under Order 8 Rule 6A of the Civil Procedure Code. It has also been observed in 1996(1) SCC 770(Gurbachan Singh Vs. Bhag Singh & Ors.) that the limitation was that the counter claim or set off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired whether such counter claim is in the nature of a claim for damages or not.

Hon''ble Supreme Court has further observed that a belated counter claim must be discarded by the Court (2003(7) SCC 356 (Ramesh Chand Ardawatiya Vs. Anil Panjwani).

It is crystal clear that law in respect of filing counter claim in terms of Order 8 Rule 6A of the Code of Civil Procedure has been sell settled by the Hon''ble Supreme Court and it has been observed by Hon''ble Supreme Court in 2008(13) SCC 179 (Bollepanda P. Poonacha & Anr. Vs. K. M. Madapa) to the following effect: "16.Parliament, however, has placed an embargo while giving effect to the decision of this Court in inserting Order VIII Rule 6A of the Code of Civil Procedure. While there exists a statutory bar, the Court''s jurisdiction cannot be exercised."

On careful consideration of the entire facts and circumstances of this case and after analyzing the provision of law as agitated by learned Advocates for both the parties, it is crystal clear that learned trial Judge has committed jurisdictional error in accepting such prayer for counter claim in the guise of amendment of written statement and such order passed by learned trial Judge is contrary to the provision of law as well as the decision of the Hon''ble Supreme Court. Accordingly the revisional application succeeds.

The order No. 24 dated 25th September, 2006 passed by learned Civil Judge(Sr. Divn.), 2nd Court, Howrah in Title Suit no. 79 of 2004 is thus set aside. Having regard to the age of the suit learned trial Judge is requested to dispose of the suit without giving any unnecessary adjournment to either of the parties within a year from the date of receipt of the copy of this order. Stay order, if there be any, is accordingly, vacated.

Let a copy of this order be forwarded to Civil Judge(Sr. Divn.), 2nd Court, Howrah forthwith.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.