Punjab-Haryana High Court
Bank Of Baroda vs Gurcharan Singh on 29 October, 1985
Equivalent citations: AIR1986P&H252, AIR 1986 PUNJAB AND HARYANA 252, 1986 REV LR 55, 1986 (89) 1 PUN LR 46, (1986) 1 CURLJ(CCR) 393, 1986 PUNJ LJ 43, 1985 RECENT LAWS 271, (1986) 1 PUN LR 46, ILR (1986) 1 P&H 358, (1986) ILR 1 P&H 358
ORDER
1. This revision petition has been filed by the plaintiff (respondent in the first Appellate Court) against the order of the District Judge, Gurgaon, dated 25th Jan. 1985, allowing the defendant (appellant in the first Appellate Court) to amend the written statement and to make a counter claim, under O.8 R. 6-A, Code of Civil Procedure.
2. Briefly, the facts are that the plaintiff instituted a suit for recovery of Td. 54,273/- against the defendant, which was contested by it. Ultimately, the trial Court decreed the suit on 19th Feb., 1982. The defendant went up in appeal before the District Judge Gurgaon. During the pendency of the appeal, the appellant made an application under O.6 R. 17 of the Code seeking amendment of the written statement. It was sought to be pleaded that the goods pledged by him were rusted while they were in custody of the Bank on account of its negligence. He, therefore, prayed that he be allowed to claim damaged from the Bank by way of counter-claim. It was alleged that the fact came to his knowledge when Mr. M. L. Chopra P.W. 7, Managers of the Bank, made statements in the Court. the application was allowed by the first Appellate Court. consequently, it accepted the appeal, set aside and remanded the case for de novo trial, after allowing the defendant to amend the written statement. The Bank has come up in revision to this Court.
3. Mr. Shahpuri, learned counsel for the petitioner, contends that the defendant-respondent could not be allowed to set up counter claim under R. 6-A of O. 8 by amending the written statement as the counter claim could be set up prior to the submission of the written statement and not subsequent thereto.
4. I have duly considered the argument and find substance in the submission of the learned counsel. In order to determine the question, it will be useful to read Rr. 6-A and 6-B which are as follows:-
"6-A. Counter claim by defendant. (1) A defendant in a suit may, in addition to his right of pleading a set-off under R.6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of 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 damaged or not:......
(2) to (4) ..........
6B Counter-claim to be stared--Where any defendant seeks to rely upon any ground as supporting right of counter-claim, he shall, as supporting a right of counter-claim, he shall, in his written statement, stare specifically that he does so by way of counter-claim."
From a reading of the rule it is clear that the defendant can file the counter-claim before delivering his defence or before the time limited for delivering his defence expires. He has also to mention that fact in the written statement It is thus evident that the defendant can file the counter-claim before he files the written statement, and cannot be allowed to do so by amending the written. statement. The object on incorporating the provision for setting up the counter-claim before the filing of the written statement appears to be, that the disposal of the suit may not be delayed. In the present case, the defendant has been allowed to set-up a counter-claim even after the suit had been decreed against him, which, in my view, could not be done.
5. For the aforesaid reasons, I accept the revision petition, set aside the impugned order and direct the Appellate Court to register the case at its original number and decide the matter in accordance with law. No order as to costs.
6. Petition allowed.