T.M. Durairaj vs S. Arulprakash

M. Venugopal, J.—The Petitioner/1st Defendant has preferred the present Civil Revision Petition as against the order dated 08.10.2010 in

I.A. No. 351 of 2010 in O.S. No. 283 of 2005 passed by the Learned Second Additional District Munsif, Coimbatore. The Learned Second

Additional District Munsif, Coimbatore, while passing the impugned order in I.A. No. 351 of 2010 in O.S. No. 283 of 2005 on 08.10.2010, has,

in paragraphs 6 and 7, inter alia, observed and held that ''.... The Petitioner/1st Defendant on 07.11.2005 has filed the written statement and also

made a counter claim and in the written statement has reserved the right of filing the counter claim and on 25.01.2008 the counter claim has been

filed but the case has come for final trial on 21.03.2006. As per Order 8 Rule 6 the counter claim has to be filed within the time prescribed for

filing the written statement and when the suit is in final stage, the counter claim cannot be accepted and as per Order 8 Rule 9 of C.P.C. the

counter claim could not be filed as additional written statement and resultantly, dismissed the petition without costs''.

Challenging the dismissal of the order dated 08.10.2010 in I.A. No. 351 of 2010 in O.S. No. 283 of 2005 passed by the Learned Second

Additional District Munsif, Coimbatore, the Learned Counsel for the Petitioner/1st Defendant contends that the trial Court has committed an error

in refusing to receive the additional written statement filed in the form of counter claim, which is against law, weight of evidence and all probabilities

of the case.

According to the Learned Counsel for the Petitioner/1st Defendant, there is no bar in law for a party to file counter claim after filing the written

statement. Further, the Learned Counsel for the Petitioner/1st Defendant submits that Order 8 Rule 9 of CPC says that other than by way of

defence to a set off or a counter claim, only with the leave of the Court pleadings subsequent to the written statement shall be presented and it is up

to the Court to decide.

Yet another submission of the Learned Counsel for the Petitioner/1st Defendant is that the cause of action is the main criteria to decide the stage

and not the factum of filing the written statement. Added further, the Learned Counsel for the Petitioner/1st Defendant strenuously submits that the

trial Court has failed to appreciate that the Petitioner/1st Defendant is entitled to file a counter claim either at the time of filing the written statement

or at the subsequent stage of the suit, provided the cause of action for filing of the said counter claim should have arisen prior to the date of filing

the written statement.

That apart, the Learned Counsel for the Petitioner/1st Defendant projects an argument that adding of a new ground of defence or substituting or

altering a defence or taking inconsistent pleas in the written statement are permissible as per decision of the Hon''ble Supreme Court in Usha

Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, .

Lastly, it is the plea of the Learned Counsel for the Petitioner/1st Defendant that all Rules of Procedure are nothing but provisions mainly

intended to secure the proper administration of justice and a liberal and lenient view in allowing the petition seeking permission of the Court to file

counter claim must be exercised, to secure the ends of justice.

The Learned Counsel for the Petitioner/1st Defendant, in support of his contention that the counter claim of the Petitioner/1st Defendant can be

allowed by a Court of Law in a liberal fashion, cites the decision of this Court in Syed Mohamed and another v. Nabisath Beevi and another,

2000-2-L.W.-575 wherein it is observed as follows:

If the counter claim does not exceed pecuniary limits of Jurisdiction of court and was filed before the defendant has delivered his defence or before

the time for delivering his defence has expired, the same could be entertained.

He also relies on the decision of this Court in S. Tajudeen Vs. S.V. Sambandan, S. Velmurugan and Mumtaj Bivi wherein in paragraphs 8 and

11, it is observed and held as follows:

But, I am not unable to accept the said contention of the learned counsel appearing for the petitioner. The language employed in Order VIII

Rule 6A C.P.C. speaks of a counter claim against the claim of the plaintiff in respect of a cause of action accrued to the defendant against the

plaintiff either before or after filing of the suit. That means, whether the cause of action accrued to the defendant before filing of the suit by the

plaintiff or after filing of the suit, in both circumstances, the same shall be claimed by the defendant before he has delivered his defence. If the

intention of the legislature is that a counter claim can be made by the defendant at any time in respect of a cause of action accrued to the defendant

before filing of the suit by the plaintiff, it would have been made very clear in the said provision. But, however, the provision contemplates both the

cause of action accrued to a defendant against the plaintiff either before or after filing of the suit. Hence, I am of the considered view that in both

cases, a counter-claim shall be made by the defendant before he could deliver his defence.

In the connection, learned counsel appearing for the petitioner relied on the decision reported in S. Thirugnanasambandam Vs. Kaliyaperumal

Chettiar, , wherein this Court has held that counter-claim of a defendant can be entertained at any stage of the suit to avoid multiplicity of judicial

proceedings. In the said decision, the judgment reported in Ramesh Chand Ardawatiya Vs. Anil Panjwani, was relied on. However, the Hon''ble

Apex Court, in the decision reported in Bollepanda P. Poonacha and Another Vs. K.M. Madapa, , has clearly held that a right to file a counter-

claim is an additional right, but, it will accrue to the defendant either before or after filing of the suit, but, before the defendant has raised his

defence. In the said judgment, the judgment reported in Ramesh Chand Ardawatiya Vs. Anil Panjwani, was also considered by the Hon''ble Apex

Court, the latter judgment shall prevail.

The Learned Counsel for the Petitioner/1st Defendant invites the attention of this Court to the decision of the Hon''ble Supreme Court in

Bollepanda P. Poonacha and another v. K.M. Madapa, 2008-2-L.W.-974 wherein it is held that ''A right to file counter claim is an additional

right. It may be filed in respect of any right of claim, the cause of action therefor, however, must accrue either before or after the filing of the suit

but before the defendant has raised his defence.''

Apart from the above, the Learned Counsel for the Petitioner/1st Defendant draws the attention of this Court to the decision in K.

Prabhakaran Vs. A.G. Krishnamoorthy, wherein in paragraph 14 and 15, it is observed and held as under:

No doubt, a Division Bench of the Patna High Court, in Jashwant Singh Vs. Smt. Darshan Kaur and Others, , has held that the right of the

defendant to make a counter-claim against the plaintiff is limited only to the cases involving money claim. In other words, the provisions relating to

the counter-claim can be made only in such suits in which there is a dispute in respect of money claim, and it cannot be held that in view of Order

VIII Rule 6-A, C.P.C., the defendant is at liberty to raise a dispute in a suit of a plaintiff, irrespective of its nature, and hence, held that in a suit on

behalf of the plaintiff for declaration that he was the licensee of the premises in question, and has a right to remain in possession thereof for the

period mentioned in the plaint, it was not open to the defendant to make a prayer for eviction of the plaintiff by way of a counter-claim, and

therefore, held that the Court in entertaining a counter-claim exercised the jurisdiction illegally and committed a material irregularity.

In my considered opinion, the counter-claim can be entertained under Order VIII Rule 6A in any suit, as held by the Calcutta High Court in

Daga Films Vs. Lotus Production and Others, , by Kerala High Court in Raman Sukumaran Vs. Velayudhan Madhavan, , and also applying the

ratio laid down in Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others, by the Apex Court, as the right of the

defendant to raise a counter-claim under Order VIII Rule 6A has not been restricted only to money suits. Any contrary view would only destroy

the very object of Order VIII Rule 6A, the object being to reduce the pendency of cases, so that causes of action and cross-claims similar in

nature would be clubbed together and disposed of by a common judgment. In the result, the submission that Rule 6-A can apply only to suits for

recovery of money has to fail.

The Learned Counsel for the Petitioner/1st Defendant contends that the Petitioner/1st Defendant as one of the defendants in the suit is entitled

to take an inconsistent plea or a stand altering the defence or in addition to take a new ground of defence and to lend support to the said

contention, places reliance on the decision of the Hon''ble Supreme Court in Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and

Others, wherein it is held as follows:

From a bare perusal of Order 6 Rule 17 CPC, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration

and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy

between the parties. The courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is

caused to the other side or on the ground that the prayer for amendment was not a bona fide one.

It transpires that in the main suit in O.S. No. 283 of 2005 on the file of the Second Additional District Munsif, Coimbatore, the trial has

commenced and P.W. 1 has been examined in full and posted for the Respondent/Plaintiff side witnesses to be examined.

Per contra, the Learned Counsel for the Respondent/Plaintiff supported the order of the trial Court dated 08.10.2010 in dismissing the I.A.

No. 351 of 2010 in O.S. No. 283 of 2005 and submits that since the trial of the main suit has commenced, the trial Court rightly dismissed the

application and the said order may not be interfered by this Court at this distance point of time.

A glance of the contents of affidavit in I.A. No. 351 of 2010 filed by the Petitioner/1st Defendant before the trial Court shows that the

Petitioner has stated that he has to put forth some other defence in the main case and therefore, he is projecting the additional written statement

along with the application by making counter claim against the Respondent/Plaintiff.

At this stage, a mere running of the eye over the contents of para 5 of the additional written statement filed by the Petitioner/1st Defendant

points out that the Revision Petitioner/1st Defendant has stated that since the Respondent/Plaintiff has committed breach of contract he is not

entitled to claim the advance amount of Rs. 30,000/- paid by him to the Petitioner/1st Defendant on the date of the agreement and further stated

that he is entitled to claim a sum of Rs. 1,000/- per month from the Plaintiff from the date of suit till the date of handing over possession of the

property to him which is occupied by the Respondent/Plaintiff.

In the decision of the Hon''ble Supreme Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani, , it is observed and held as follows:

A perusal of the abovesaid provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a defendant to file

a counter-claim. The relevant words of Rule 6A are--""A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, .....

before the defendant has delivered or before the time limited for delivery of defence has expired"". These words go to show that a pleading by way

of counter-claim runs with the right of filing a written statement and that such right to set up a counter claim is in addition to the right of pleading a

set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written

statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then

neither the written statement can be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6A must find

its place in the written statement. The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also

to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly but needless to say such discretion shall

be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defended, and the fact

whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of

time.

..... The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court''s

time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being

decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of

subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of

the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of

permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for

forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original

written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when

the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no

written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no

question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim

therein. Equally there would be no question of a counter-claim being raised by way of ''subsequent pleading'' as there is no ''previous pleading'' on

record. In the present case, the defendant having felled to file any written statement and also having forfeited his right to filing the same the Trial

Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a

belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at

liberty to file his own suit based on the cause of action for counter-claim.

As far as the present case is concerned, the Respondent/Plaintiff has filed the suit on 27.01.2005. The written statement was filed by the

Petitioner/1st Defendant on 05.11.2005. But the Petitioner/1st Defendant filed I.A. No. 351 of 2010 praying permission of the trial Court to file

additional written statement as per Order 8 Rule 9 of C.P.C. on 05.12.2007. The additional written statement sought to be projected by the

Petitioner/1st Defendant was dated 25.01.2008.

The Learned Counsel for the Petitioner/1st Defendant draws the attention of this Court to Order 8 Rule 8 of Civil Revision Petition which deals

with ""New ground of defence"". By referring to the ingredients of Order 8 Rule 8 of Civil Procedure Code, it is the submission of the Learned

Counsel for the Petitioner/1st Defendant that the counter claim defence is not a new ground or the same has not arisen subsequent to the filing of

the suit and even though it has been filed belatedly, the length and breadth of delay cannot be a ground which may prevent this Court from taking

the same on file.

Inasmuch as the said additional written statement in the form of counter claim has been filed belatedly by the Petitioner/1st Defendant before

the trial Court in the main suit in O.S. No. 283 of 2005 after commencement of trial and that too when P.W. 1 has been examined in full, then, this

Court is not in a position to accept the plea raised on behalf of the Petitioner/1st Defendant in this regard.

It is to be noted that a counter claim cannot be filed once recording of evidence has commenced, in the considered opinion of this Court. It is

true that the object of Order 8 Rule 6A of CPC is to avoid plurality of proceedings. Also that, the ingredients of Order 8 Rule 9 of CPC and

Order 6 Rule 17 of Civil Procedure Code, both are contextually different. But a counter claim cannot be filed belatedly and the law of limitation

squarely applies to a counter claim. Even though a counter claim is to be construed/treated as a separate suit and deemed instituted in Court on

which it is made, an amendment introducing counter claim when the trial of the main case has started is to be rejected, as opined by this Court. If a

Court refuses to entertain a belated counter claim, the same would not prejudice the Defendant because in spite of the counter claim having been

refused to be entertained he is always at liberty to file his own suit based on the cause of action for the said counter claim as per decision in

Ramesh Chand Ardawatiya Vs. Anil Panjwani, .

On a careful consideration of respective contentions and although the object of Order 8 Rule 6A as regards the ''counter claim'' is to avoid

plurality of proceedings, yet, this Court is of the considered view that in main suit O.S. No. 283 of 2005 on the file of the Second Additional

District Munsif, Coimbatore, the issues were framed and also that P.W. 1 was examined in full. Further, when the trial has commenced, the

Revision Petitioner/1st Defendant, in the considered opinion of this Court, is not entitled to project the counter claim by way of additional written

statement. That apart, the Petitioner/1st Defendant cannot, either as a matter of routine or as a course, claim any right to file the additional written

statement in the form of counter claim. In the instant case, the additional written statement in the form of counter claim was dated 25.01.2008,

although I.A. No. 351 of 2010 was dated 05.12.2007. At this stage, the Learned Counsel for the Petitioner/1st Defendant brings it to the notice of

this Court that at the time of filing of I.A. No. 351 of 2010 on 05.12.2007 the additional written statement by way of counter claim was not filed

and only at a later point of time dated 25.01.2008 the same was filed with necessary court fee being paid. However, the trial Court has rejected

the I.A. No. 351 of 2010 on 08.10.2010 by assigning reasons.

Looking at from any point of view, the impugned order of the trial Court in I.A. No. 351 of 2010 in O.S. No. 283 of 2005 dated 08.10.2010

in dismissing the application filed by the Petitioner/1st Defendant under Order 8 Rule 9 of CPC to file counter claim does not suffer from

impropriety or material irregularity or patent illegality in the eye of law. Consequently, the Civil Revision Petition fails. In the result, the Civil

Revision Petition is dismissed, leaving the parties to bear their own costs. The order of the trial Court in I.A. No. 351 of 2010 in O.S. No. 283 of

2005 dated 08.10.2010 is confirmed by this Court for the reasons assigned in this revision. Consequently, connected Miscellaneous Petition is also

dismissed.