__________________________________________________________ vs Kultar Singh & Another on 4 December, 2018

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Himachal Pradesh High Court

__________________________________________________________ vs Kultar Singh & Another on 4 December, 2018

Bench: Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                  CMPMO No : 469 of 2017




                                                                                       .
                                Date of Decision: 4.12.2018





    __________________________________________________________
    Jasvinder Singh Narula                      .....Petitioner





                                                  Versus
    Kultar Singh & another                .....Respondents
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?                          1
                                                                 Yes.

    For the Petitioner

                                          : Mr. Sanjeev Kuthiala,Advocate

    For the Respondents: Mr. Vikrant Chandel, Advocate,

                         for respondent No.1.

    Sandeep Sharma, Judge (oral):

Being aggrieved and dissatisfied with the order dated 27.07.2017, passed by learned Civil Judge (Junior Division), Court No.4, Mandi,District Mandi,H.P, whereby an application having been filed by the petitioner (hereinafter referred to as the 'plaintiff') under Order 6 Rule 16 read with Section 151 of the Code of Civil Procedure, praying therein to strike out the written statement and counter claim of respondent No.1 (hereinafter referred to as defendant No.1), came to be dismissed, plaintiff has approached this Court in the 1 Whether the reporters of the local papers may be allowed to see the judgment?

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instant proceedings filed under Article 227 of the Constitution of India.

2. Having heard learned counsel for the parties and perused the material available on record vis-a-vis reasoning assigned by the learned Court below while passing the impugned order, this Court finds no illegality and infirmity in the impugned order, rather same appears to be based upon proper appreciation of evidence and law and as such, same needs to be upheld.

3. It is not in dispute that defendant No.1 while responding to the suit having been filed by the plaintiff, categorically stated in the written statement that the plaintiff has made illegal encroachment adjoining to his house on the land of the replying defendant recently and defendant No.1 reserves his right to file a separate suit for possession after obtaining proper demarcation and spot map. It is not in dispute that during the pendency of the suit inter se parties, defendant No.1 obtained demarcation, wherein plaintiff was allegedly found to have encroached upon the land of defendant No.1. Since, the plaintiff was alleged to have encroached upon the land of defendant No.1, defendant No.1 while praying for amendment in the ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 3 written statement also sought permission from the Court to raise counter claim, which plea was accepted by the .

learned Court below.

4. Being aggrieved and dissatisfied with the aforesaid permission granted by the Court below, plaintiff moved an application under Order 6 Rule 16 read with Section 151 CPC, praying therein to stike out the written statement and the counter claim of defendant No.1, however as has been noticed hereinabove, since plea of having taken steps for obtaining demarcation qua the disputed land was already taken by defendant No.1 in the written statement coupled with the fact that report of the same was procured after filing of the suit, defendant No.1 could not be precluded from raising counter claim after filing of written statement. Otherwise also, as per Order 8 Rule 6 CPC, defendant could always file counter claim after filing of written statement provided that cause of action had accrued to him/ her prior to filing of written statement or prior to date of expiry to file written statement.

5. The Hon'ble Apex Court in Mahendra Kumar and another vs. State of Madhya Pradesh and others, AIR 1987 SC 1395, has categorically held that ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 4 under Order VIII, Rule 6A(1) CPC, counter claim can be filed after filing of written statement, 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 Hon'ble Apex Court in Mahendra Kumar's case supra has held as under:-

"5. After the filing of the written statement, the appellants filed a counterclaim claiming title to the treasure. It is not necessary for us to state the basis of the claims of the parties to the treasure. The respondents Nos. 2 to 5 filed an application praying that the counterclaim should be dismissed contending that it was barred by limitation as prescribed under section 14 of the Act and that it was also not maintainable under Order VIII, Rule 6A(1) of the Code of Civil Procedure. The learned District Judge came to the finding that the counter claim was barred by section 14 of the Act and, in that view of the matter, dismissed the counterclaim. Being aggrieved by the said order of the learned District Judge, the appellants and the said respond ents Nos. 6 to 8 moved the High Court in revision against the same. The High Court upheld the order of the learned District Judge that the counterclaim was barred by limita tion as prescribed by section 14 of the Act.The High Court further held that the counter claim having been filed after the filing of the written statement, it was not maintainable under Order VIII, Rule 6A(1) of the Code of Civil Procedure. Hence this appeal by special leave.

15. The next point that remains to be considered is whether Rule 6A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counterclaim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. What is laid ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 5 down under Rule 6A(1) is that a counterclaim 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 counterclaim is in .

the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counterclaim 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 Rule 6A(1) of the Code of Civil Procedure. As the cause of action for the counter claim had arisen before the filing of the written statement, the counterclaim was, therefore, quite maintainable. Under Article 113 of the 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 counterclaim, which is treated as a suit under section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the fight to sue. The learned District Judge and the High Court were wrong in dismissing the counterclaim."

6. The Hon' ble High Court of Punjab and Haryana High Court in Mohinder Singh vs. Karnail Singh and others, (2013)5 RCR (Civil) has reiterated that counter claim can be filed, even subsequent to filing of the written statement, subject to the condition that cause of action for filing the counter claim should have accrued before the filing of the written statement. In the aforesaid judgment, Punjab and Haryana High Court has held that counter claim can be entertained even if the same was not included in the ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 6 written statement, subject to the aforesaid condition. The Court has held as under:-

.

"5. Counsel for the petitioner contended that defendant No.7 was submitting his written statement by including the counter claim therein, but the trial court did not admit the counter claim of defendant No.7. Counsel for respondent No.1, however, contended that counter claim was not part of the written statement that was filed by the petitioner in the trial court. Counsel for the petitioner submitted that even if counter claim was not part of the written statement, the same can be filed even thereafter. Reliance in support of this contention has been placed on two judgments of this Court i.e. Raghubir Singh and others v. Tajinder Pal Singh and others reported as 2009(4) Civ.C.C. 755 and Nini Kumar Jain v. Neena Devi and others reported as 2006(4) R.C.R. (Civil) 770. On the other hand, counsel for respondent No.1, relying on judgment of Gujarat High Court in the case of Sidi Muslim Jamat Bilali v. Kasamsha Hasisha Sotiayara reported as 2010(85) AIC 345 and judgment of Hon'ble Supreme Court in the case of Bollepanda P.Poonacha and another v. K.M. Madapa reported as 2008(3) R.C.R (Civil) 150, contended that counter claim cannot be filed subsequent to the filing of the written statement.

6. Having carefully considered the aforesaid contentions, I have come to the conclusion that counter claim can be filed even subsequent to the filing of the written statement, subject to the condition that cause of action for filing the counter claim should have accrued before the filing of the written statement. Consequently, counter claim fo defendant No.7-petitioner can be entertained even if the same was not included in the written statement, subject to the aforesaid condition. In this view, I am supported by judgments of this Court in the cases of Raghubir Singh (supra) and Nini Kumar Jain (supra). In those cases, judgment of Hon'ble Supreme Court namely Mahdndra Kumar v. State of M.P. reported as AIR 1987 Supreme Court 1395 (1) was also relied on. Judgment of Gujarat High Court in the case of Sidi Muslium Jamat Bilali of curse supports the contention of counsel for respondent No.1, but the same cannot be preferred over judgment of this Court referred to herein before, which also relied on judgment of Hon'ble Supreme Court in the case of Mahendra Kumar (Supra). In so far as judgment of Hon'ble Supreme Court in the case of Boilepanda P.Poonacha (supra), cited by counsel ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 7 for respondent No.1 is concerned, in the said case, no such proposition of law, as sought to be canvassed by counsel for respondent No.1, has been laid down. On the contrary, in that case, counter claim was sought to be filed after the suit .

had already been decreed. It was held that counter claim could not be filed after the suit had been decreed. In the said judgment, it was also observed that for filing counter claim, cause of action should have accrued before filing of the written statement. However, it was not laid down that counter claim should be filed before filing of written statement. On the contrary, in view of judgment of Hon'ble Supreme Court in the case of Mahendera Kumar (supra) also, counter claim can be filed even subsequent to filing of written statement.

7. However, in the case at hand, this Court is persuaded to agree with Mr. Sanjeev Kuthiala, learned counsel representing the plaintiff that learned court below while granting permission to defendant No.1 to raise counter claim, ought to have granted time to plaintiff to file written statement to the same, but in the case at hand, careful perusal of the impugned order suggests that court below while holding defendant entitle to file counter claim in his defence fixed the matter for framing of issues directly.

8. Consequently, in view of the above, impugned order dated 27.7.2017, passed by learned Civil Judge(Junior Division) Court No.4, Mandi, District Mandi, H.P., is modified to the extent that plaintiff would be entitled to file written statement, if any, to the counter claim raised by defendant ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP 8 No.1, whereafter Court would proceed to frame issues.

Ordered accordingly.

9. Learned counsel representing the parties undertake to cause presence of their respective parties before the learned Court below on 18.12.2018, to enable it to proceed with the matter, so that no unnecessarily delay is caused.

10. Registry is directed to apprise the learned Court below with regard to passing of the instant order forthwith, so that needful is done without any delay.

Accordingly, the present petition stands disposed of in the aforesaid terms alongwith pending application(s), if any.

(Sandeep Sharma), Judge 4th December,2018 (shankar) ::: Downloaded on - 06/12/2018 22:56:34 :::HCHP

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