Vidyadharan vs Thankamma

K.T. Sankaran

The petitioner herein filed O.S. No. 179 of 2010 on the file of the court of the Munsiff of Irinjalakuda for fixation of boundary of the plaint schedule property. The defendants filed a written statement on 9.6.2010. Thereafter, the defendants filed I.A. No. 4250 of 2010 to amend the written statement and to incorporate a counter claim. The court below allowed the application by Ext. P5 order dated 21st December 2010, which is under challenge in this Original Petition. The learned counsel for the petitioner submitted that the court below was not justified in allowing the amendment. The defendant did not file the counter claim on the date of filing of the written statement. Therefore, the defendants are precluded from filing a counterclaim later. It is pointed out that the cause of action for the counterclaim arose on 10.5.2010.

Sub-rule (1) of R. 6A of Order VIII of the CPC reads as follows:

6A. Counter-claim by defendant:-- (1) A defendant in a 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.

The requirement of sub-r. (1) of R. 6A of O. VIII C.P.C. is that the counterclaim must relate to a cause of action accrued to the defendant against the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The cause of action for the counter claim could be one which arose either before or after the filing of the suit. A cause of action which has arisen after the filing of the written statement or after the time limited for delivering the defence has expired, cannot be the basis for filing a counter claim. On the other hand, if the cause of action for the counter claim arose before the date of filing of the written statement or before the time limited for delivering the defence has expired, such a counter claim could be entertained even after filing the written statement. The date of filing of the written statement or the expiry of the time limited for filing of the written statement has relevance only to the cause of action for the counter claim and it has no relevance for filing the counter claim. Counter claim could be preferred even later by way of amendment of written statement The only restriction is that such counterclaim must relate to a cause of action which accrued before the filing of the written statement or before the time limited for delivering the defence has expired.

In Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, , the Supreme Court held thus:

The next point that remains to be considered is whether R. 6A(1) of Order VIII, Civil F.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R. 6A(1) does not, on the face of it; bar the tiling of a counter claim by the defendant after he had filed the written statement. What is laid down under R. 6A(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 provision of R. 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 finding of the High Court does not get any support from R. 6A(1), Civil P.C. 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.

The decision in Mahendrakumar''s case was relied on in Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs., , Bollepanda P. Poonacha and Another Vs. K.M. Madapa, and Ramesh Chand Ardawatiya Vs. Anil Panjwani, .

The learned counsel for the petitioner relied on the decision of the High Court in Kerala Nadvathur Mujahideen Vs. Hussain Madvoor, and referred to paragraph 10 thereof. The petitioner also relied on the decision in John George Vs. Koran, . On a careful reading of the aforesaid decisions of the Kerala High Court, I do not think that those decisions would support the contention put forward by the petitioner.

Section 3(2)(b) of the Limitation Act states that for the purpose of the Act, any claim by way of a set off or counter claim shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in court. In so far as the counter claim is concerned, the period of limitation for filing the same is to be reckoned with reference to the date on which the counter claim is made. A combined consideration of S. 3(2)(b) of the Limitation Act and R. 6A of O.VIII of C.P.C. would make the position abundantly clear that even though the counter claim was not presented along with written statement, it could be presented even later, provided the period of limitation for filing the same has not expired and the cause of action accrued before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The court below rightly allowed the application for amendment of the written statement. No grounds are made out for interference under Art. 227 of the Constitution of India.

The Original Petition is accordingly dismissed.