Sudhir Kumar Wadhwa vs IVth Additional District and Sessions Judge and Others

D.K. Seth, J.—Original Suit No. 826 of 1983 was initiated in the Court of 1st Addl. Munsif, Shahjahnpur by the Plaintiff on 29.9.1983. A written statement was filed on 24.2.1985. An application for amendment of written statement setting up counter claim was filed on behalf of the Defendant alleging that the cause of action of the counter claim had arisen on 10.8.1989. The said amendment application was objected to. By an order dated 21.4.1980 the said application was dismissed on the ground that the counter claim can not be set up because of cause of action had arisen after filing of the written statement as contemplated under Order VIII, Rule 6(a) of the Code of Civil Procedure. A resultant revision, being Civil Revision No. 37 of 1990 preferred by the Defendant was dismissed on 25.4.1991. Subsequently, an application for amendment to the plaint was sought for by the Plaintiff on 9.1.1995. wherein it was said that the disputed road was closed since the year 1976, where the Plaintiff should be permitted to raise a wall and accordingly, had incorporated the prayer to that effect. After the amendment was allowed the Defendant filed additional written statement on 5.4.1995. In the said additional written statement from Paragraph ''11'' onwards the Defendant had pleaded to set up a counter claim again basing the date of cause of action in para 12 as on 10.8.1989. The said written statement was accepted by the learned Munsif by an order dated 6.7.1995 only to the extent of paragraphs 1 to 10 thereof while the counter claim set up in paragraphs 11, 12, 13 and the prayer were disallowed. Against the said order Civil Revision No. 56 of 1995 was preferred by the Defendant. By an order dated 12.9.1995 the said Revision No. 56 of 1995 was allowed and part of the order dated 6.7.1995 passed by the learned Munsif rejecting the last part of the additional written statement beginning from para 11 onwards was set aside. It is against this order the present writ petition has been moved. On the prayer of K.M.L. Hajela, learned Counsel for the Petitioner leave is given to amend the cause title so as to convert this petition into one under Article 226 of the Constitution.

In support of the petition Shri Hajela, learned Counsel for the Petitioner contends that since the cause of action has arisen on 10.8.1989 long after filing of the written statement namely, on 24.1.1985, therefore, the Defendant is precluded from raising any counter claim in view of specific provision of Rule 6-A of Order VIII of the code which has since been interpreted by the Apex Court in the case of Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, .

On the other hand Sri Narendra Mohan, learned Counsel appearing on behalf of the Respondents contend that since the said fact was not in the plaint, therefore, the application for counter claim was rightly rejected earlier. But after the plaint was amended incorporating the said fact on 9.1.1995 the Defendant having been allowed to file additional written statement with regard to the said fact in that event, according to him, the date of filing written statement, as contemplated in Rule 6-A of the CPC would be the date of filing of additional written statement and the cause of action having arisen before 5.4.1995 therefore, the interpretation given in the case of Mahendra Kumar (supra), cannot be attracted. In as much as, according to him, the counter claim has been based on the cause of action namely, dated 10.8.1989 which is earlier than the date of filing of additional written statement namely, 5.4.1995. He supports his contention on the ground that in absence of specific fact which was brought on by way of amendment on 9.1.1995 there was no scope of pleading the counter claim before the Additional written statement was filed. The earlier rejection of the counter claim could be ignored because of the reason that at that point of time the counter claim was misconceived.

The text of Order VIII, Rule 6-A of the CPC runs as under:

6-A. Counter-claim by Defendant. - (1) A Defendant in 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.

A plain reading indicates the limitation provided in the said Rule as to the lodging of the counter-claim is the relevancy of the date of accrual of cause of action and not the date of filing of written statement, in as much as it specifies that the counter-claim can be lodged in respect of cause of action accounting either before or after filing of the suit but before the Defendant has delivered his defence or before the time limited for delivering his defence has expired. Therefore, it speaks of the delivery of defence or the time limited for delivering the defence. There is no doubt that filing or delivering of defence is not the criterion the counter-claim can be lodged even after the delivery of defence or expiry of time limited for delivering the defence. But the only criterion is the relevancy of the date of accrual of cause of action. Such cause of action has to accrue either before or after the suit, but before the date of delivering the defence or the expiry of time limited for delivering the defence. It does not say anything else.

While interpreting the statute I can not read any word or supply any word which are absent in the statute. If the statute can be interpreted simply in that event there is no necessity of obtaining any aid by using any other words. In the present case, in order to read what Mr. Narendra Mohan wants me to do, in that event it is necessary to add some word to the statute. Inasmuch as the defence is delivered after the summons are served on the basis of date specified in the summons unless such date are extended. After the defence is delivered before expiry of time limit there is no necessity of extending such time. In case the time has expired and no leave is obtained in that event there cannot be scope of extending the period for setting up the counter-claim beyond the same. In order to read that delivering of defence into delivering of additional written statement would e too stretching of the simple meaning of Rule 6-A of the Code beyond the permissible limit, as has been laid down in different decisions relating to interpretation of statute. The additional written statement are allowed upon amendment of the plaint which are the additional defence. In order to include the additional written statement, it is necessary to add "or additional defence" Otherwise, such meaning can not be possible. In interpreting Rule 6-A in the manner Sri Narendra Mohan, learned Counsel for the Respondent, wants this Court to do would be too difficult to accept inasmuch as if such interpretation is given in that event judiciary would be encroaching upon the realm of legislation, which the judiciary cannot do.

Counter-claim is to be set up within the time, as mentioned in Rule 6-A, as has been observed earlier, is on the basis of inspiration drawn from the case of Mahendra Kumar (supra), which lays down interpretation to Rule 6-A in the following manner:

The next point that remains to be considered is whether Rule 6-A(1) of Order VIII, 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 provisions of Rule 6A(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 filing of the High Court does not get any support from Rule 6A(1) 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, 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.

Sub-rule (2) of Rule 6-A prescribes that counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce final judgment in the same suit, both on the original claim and on the counter-claim therefore, on necessity of filing the cross suit the Defendant may have the liberty of lodging a counter-claim under Rule 6-A. But the same is not mandatory but is optional. The Defendant may either file cross-suit or may lodge counter-claim. The choice of option is with the Defendant. In the present case, the counter-claim, though lodged, but having been refused, it cannot be said that the counter-claim has been decided and decision within the meaning of Section 11 of the Code was given. Even if counter claim is refused if cause of action survives the Defendant has every right to file separate suit or cross-suit. He has also right to apply for hearing of both the suits simultaneously or one after the other or. analogously, as the case may be and it is the discretion of the Court to decide the same on merits according to its own discretion and wisdom. That right to file cross-suit or separate suit is protected by reason of observations made in the case of Mahendra Kumar (supra), in the following manner:

Another aspect in this regard may be considered. It may be argued that as the Collector had not allowed the Appellants and Respondents Nos. 6 to 8 to file a counter claim or a suit the suit was not maintainable. In our opinion, the question of filing a counter-claim arises after a suit is filed by the claimant u/s 8. It may be that there is no substantial difference between counter-claim and a suit but nonetheless a Defendant can not be prevented from filing a counter-claim under the code of Civil Procedure.

Therefore, even refusal of the counter-claim does not ensure any prejudice to the right of the Defendant to file the suit, if he has cause of action.

Then again the prayer for loading counter-claim was rejected by an order dated 23.4.1990. The said counter-claim admittedly is the same which is being sought to be espoused in the subsequent additional written statement. The principle of res judicata applies even between the two stages for the same litigation to this extent that a Court whether the trial Court or a Higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding. With an exception as has been provided in the case of Satyadhyan Ghohsal and Ors. v. Smt. Deorajin Devi and Anr. AIR 1950 S.C. 941, in which the said principle was applied. The reasoning given in the said judgment was that the said principle is based on the need of giving finality to the judicial decisions.

In that view of the matter on account of established principles of law, as observed earlier, it is apparent that the learned Additional District Judge has acted without jurisdiction in allowing the Additional written statement, setting up a counterclaim in respect of cause of action, said to have arisen on 10.8.1989, after the defence had delivered on 24.2.1985. The said order appears to have been passed illegally and with material irregularity in exercise of revisional jurisdiction. Therefore, the order dated 12.9:1995 passed by the Additional District Judge, IVth Court, Shahjahanpur in Civil Revision No. 56 of 1995 is hereby set aside. The application stands, thus, allowed. There will be, however, no order as to costs.

Let a copy of this order be given to the learned Counsel for the Petitioner on payment of usual charges within a week.