Synergy Mining Corporation A Proprietary concern of Mr. Sant Kumar Ojha vs Monnet Ispat and Energy Ltd.

N.A. Britto, J.—Rule. By consent, heard forthwith.

The Petitioner herein is the plaintiff in Special Civil Suit No. 112/2007/B, and hereinafter shall be referred to as such. This writ petition is filed by him to challenge the order dated 4.3.2008 by which time sought by the plaintiff to file written statement to the counter claim has been rejected. The plaintiff had filed the suit, interalia, for recovery of Rs. 14,03,213.80 (Rupees Fourteen lakhs three thousand two hundred thirteen and eighty paise only) being the value of certain iron ore supplied to the defendant. The defendant filed written statement with counter claim on 29.12.2007.

When the case was taken up on 22.1.2008 arguments were partly heard on exhibit 4, an application for temporary injunction, and on the same day the plaintiff filed an application seeking time to file written statement to the counter claim and as the same was not objected to by the defendant, the same was granted. On 2.2.2008 the presiding officer was absent. On 4.3.2008 the plaintiff filed another application seeking time to file written statement to the counter claim. In the said application it was made clear by the plaintiff that the plaintiff had changed their lawyer, vakalatnama was filed and it was stated that the said lawyer needed some time to draft written statement to the counter claim. The same was objected to and it came to be dismissed by learned trial Court with an observation that the ground stated in the application could not have been upheld mechanically for granting time to file written statement to the counter claim. In other words, there is no dispute that the said application seeking time to file written statement to the counter claim was filed within 90 days of filing of the written statement cum counter claim and yet came to be rejected by learned trial Court even without trying to find out whether the reason assigned by the plaintiff was genuine or not. In other words, time was sought because the plaintiff had engaged another lawyer who had filed vakalatnama on that day and it was stated that he needed some more time to draft the written statement.

Rule 6A, Order 8 C.P.C., deals with counter claim by the defendant. This Rule and the Rules which follow it, was inserted by CPC (amendment) Act, 1976 w.e.f. 1.2.1977. Sub-rule 3 of Rule 6-A states that 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. Rule 1, Order 8 deals with written statement and was substituted by CPC (amendment) Act 2002 w.e.f. 1.7.2002 and it provided that the defendant shall, within 30 days from the date of service of summons on him, present a written statement of his defence: provided that where the defendant fails to file written statement within the said period of 30 days, he shall be allowed to file the same on the such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons. The question, that filing of the written statement to the counter claim is governed by Sub-rule (3) of Rule 6-A of Order 8 is a question which is no loser resintegra

In the case of Shalini Nunes Mascarenhas and two Ors. v. Trevour Nunes and Anr. 2009 (2) GLR 222, this Court has held that the filing of the written statement to the counter claim, is not governed by Order 8, Rule 1, of C.P.C., but it it governed by Order 8 Rule 6A, (3) of C.P.C. In terms of the said Sub-rule, the trial court is expected to fix time for filing the written statement to the counter claim. The necessary conclusion, therefore, is that Order 8, Rule 1 of C.P.C., dealing with the filing of the written statement is not applicable to the written statement to be filed by the plaintiff in answer to the counter claim filed by the defendant. There is no conflict at all between the provisions of Sub-rule (4) of Rule 6-A of Order 8, and Rule 1 of Order 8. Sub-rule (4) of Rule 6-A of Order 8, which specifies that the counterclaim shall be treated as plaint and governed by rules applicable to the plaint has nothing to do with Order 8, Rule 1, but will have everything to do with Order VII C.P.C., which deals with contents of a plaint, for a counter claim is really a suit or cross suit statutorily recognised. It has nothing to do with the period during which a written statement to a counterclaim is required to be filed and this is solely governed by Sub-rule 3, of Rule 6-A of Order 8.

Again, it may be noted that the provisions of Order 8, Rule 1, were substituted with a view to curb the menace of unscrupulous defendant/s adopting dilatory tactics, delaying disposal of case causing inconvenience to the plaintiff and the petitioner approaching the court for seeking reliefs and also to the serious inconvenience to the Court faced with frequent prayers for adjournment and its object is to expedite the hearing and not to delay the same. This has been stated by the Apex Court in the case of R.N. Jadi and Brothers and Others Vs. Subhashchandra, .

Therefore, the conclusion is inescapable that the time limit of filing a written statement in answer to the counter claim is governed by Sub-rule (3), Rule 6A, Order 8, C.P.C. i.e within such time as may be fixed by the Court.

Does that mean, a plaintiff can get time, time and again, to file a written statement to the counter claim and delay the trial of the suit? It is not that it is always the defendant/s who are interested in delaying the suit. At times, the plaintiff/s are also interested for delaying the trial of the suits. At times the Courts as well as the parties remain focused on application for temporary injunctions, forgetting the need to file written statement either to the claim or counter claim.

The Courts therefore will do well, to keep in mind the mandate of Rule 1, Order 8, C.P.C., while fixing or extending the time to file written statement in answer to the counter claim under Sub-rule (3) of Rule 6A and follow the said provision to the extent it is applicable. In other words, the provision of Order 8, Rule 1, could be read into the provision of Sub-rule (3), Rule 6A, Order 8, C.P.C., whilst considering fixing or extending the time for filing the written statement to the counter claim. As is often said "what is sauce for the goose should also be sauce for the gander."

Considering the facts of the case and the reasons assigned, the learned trial Court was not justified in not granting time to the plaintiff to file written statement in answer to the counter claim. Consequently the petitioner succeeds. The impugned order is set aside. Both the parties are hereby directed to remain present before the learned trial Court on 12.7.2010. The plaintiff shall file their written statement on that day, in case it has not been filed so far.

Rule is made absolute in aforesaid terms.