Subhash Chand Amar vs Smt. Kiran Girdhar and Others

Paramjeet Singh, J.—Instant revision petition under Article 227 of the Constitution of India has been filed against the order dated 21.10.2011 passed by learned Civil Judge (Senior Division), Faridabad, whereby application dated 28.3.2011 under Order 8 Rule 6A CPC moved by petitioner/defendant No. 2 for permission to file counter-claim, has been dismissed. I have heard learned counsel for the parties and perused the record.

Plaintiffs filed a suit for declaration to the effect that they have acquired occupancy rights under Sections 5 and 8 of the Punjab Tenancy Act, 1887 and have become owners of the suit land by virtue of Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. In the said suit defendants were summoned. Defendants No. 1 and 3 filed written statement jointly and defendant No. 2/petitioner also filed written statement separately. Defendants No. 1 and 3 moved an application for amendment of written statement which was allowed on 26.11.2010. Thereafter defendant No. 2/petitioner moved an application for amendment of the written statement and that too was allowed on 7.2.2011. Issues were framed on 6.9.2010. Thereafter plaintiffs have examined two witnesses, namely, Rajiv Girdhar and Ravinder Singh, who had tendered their affidavits. Additional issues 2(A) and 2(B) were framed on 22.12.2010 and case was adjourned to 2.2.2011 for evidence of the plaintiffs. Again after replication to the amended written statement, additional issues 2(C) and 2(D) were framed on 21.2.2011 and case was adjourned to 1.4.2011 for cross-examination of the witnesses of the plaintiffs. The application for counter-claim was moved by the petitioner on 28.3.2011 after framing of the last additional issues on 21.2.2011. Admittedly, the plaintiffs have already tendered their evidence indicating examination-in-chief and case was fixed for cross-examination on 1.4.2011.

The contention of the learned counsel for the petitioner is that since the additional issues were framed on 21.2.2011 and the case was adjourned to 1.4.2011 for cross-examination of the witnesses of the plaintiffs, therefore, the application was moved prior to examination of the witnesses for adding the counter-claim. As such the counter-claim application dated 28.3.2011 is within time and the impugned order should be set aside.

The contention raised by learned counsel for the petitioner has been vehemently opposed by learned counsel for the respondents.

Learned counsel for the respondents contended that twice the amendment of the written statement has been allowed; once by defendants No. 1 and 3 and once by petitioner/defendant No. 2. At that stage no counter-claim was raised by the petitioner in spite of the fact that he had availed two opportunities to file written statement i.e. firstly when written statement was filed and secondly when amended written statement was filed. The application for counter-claim is barred by limitation.

I have considered the rival contentions raised by learned counsel for the parties and perused the record.

It is settled principle of law that after framing of the issues, counter-claim cannot be allowed to be set up. Hon''ble Supreme Court in Rohit Singh and Others Vs. State of Bihar (Now State of Jharkhand) and Others, has held that counter claim can be filed after filing of written statement but not after issues are framed and evidence is closed. In Smt. Parvathamma Vs. K.R. Lokanath and others, it has been held by Karnataka High Court that counter-claim can be set up before recording of the evidence commences. Hon''ble Supreme Court in Vidyabai and Others Vs. Padmalatha and Another, has held that date on which the issues are framed, is the date of first hearing. Filing of an affidavit in lieu of examination-in-chief of witnesses would amount to commencement of proceeding.

Here is the case wherein the issues were framed in pursuance of the amendment of the written statement filed by the petitioner. Even after framing of the additional issues, in view of the amended written statements, petitioner did not set up his claim for counter-claim. When the case was fixed for 1.4.2011 for cross-examination of the plaintiffs'' witnesses during that period this application was moved on 28.3.2011. Just five days prior to the date fixed, the application for counter-claim is not maintainable. Otherwise also it will not prejudice the rights of the petitioner. Petitioner has independent right to file his independent suit on the same basis on which he claims counter-claim.

In view of the above, I do not find any illegality or perversity in the impugned order. Dismissed.