Punjab-Haryana High Court
Ashok Kumar And Ors. vs Om Parkash And Ors. on 28 October, 1996
Equivalent citations: (1997)116PLR531
JUDGMENT N.K. Kapoor, J.
1. This revision petition is against the order of Additional Civil Judge (Senior Division) dated 29.5.1996 allowing the respondents to amend the written statement thereby permitting them to incorporate counter claim in the proposed amended written statement.
2. It has been urged by the learned counsel for the petitioner's that the order allowing the amendment is unsustainable in law on the short ground that vide the proposed amendment counter-claim is being set up which is impermissible in view of the decision of this Court in case reported as Bank of Baroda v. Sh. Gurcharan Singh, (1986-1)89 P.L.R. 46. Similar view has been taken in Srikanth Spinners v. State Bank of India, 1995(1) Civil Court Cases, 453 (Andhra Pradesh High Court) and Kashi Biswanath Dev v. Parmananda Routrai and Ors., AIR 1985 Orissa 260. According to the counsel, the proposed amendment violates themandate of Order 8 Rule 6-A cf the Cede of Civil Procedure. As per Order 8 Rule 6-A of the Code, a counter claim can be set up before the defendant has delivered his defence or before the time limited for delivering his defence has expired. In the instant case, written statement has been filed on 25.3.1996 whereas amendment of the written statement has been sought on 22.5.1996. Such being the admitted position, the Court below has erred in law-in permitting the respondents to amend the written statement with a view to set up a counter claim.
3. Counsel for the respondents, on the other hand, argued that the amendment allowed will in deed help in effectively and completely adjudicating the matter in controversy. This indeed will cut down the litigation between the parties - the precise purpose for which this provision has been inserted in the Civil Procedure Code. Otherwise too, all that a perusal of Order 8 Rule 6-A (1) of the Code states is that a defendant can set up by way of counter claim against the claim of the plaintiff, any claim or right in respect of a cause of action which has accrued to him -either before or after the filing of the suit. Moreover, amendment of the written statement as and when granted in a way substitutes the earlier written statement and construed so, plea regarding counter-claim would form part of such a written statement and this way too the objection raised by the petitioners is ill-founded. The apex Court in case reported as Mahendra Kumar and Anr v. State of Madhya Pradesh and Ors., AIR 1987 S.C. 1395 has held that Rule 6A(1) does not, on the face of it, bar the Filing of a counter claim by the defendant after he had filed the written statement. Thus, in view of the decision of the apex Court, the order impugned is perfectly just and legal calling for no interference.
4. Facts have been briefly noticed and, in fact, not in dispute. Concededly, written statement has been filed on 25.3.1996. The application for amendment was filed on 22.5.1996 and allowed by the trial Court vide order dated 29.5.1996. There is no denying the fact that this Court as well as two other Courts have taken a view that a counter-claim can be set up before filing of the written statement. In Bank of Baroda's case (supra), counter-claim was set up before the appellate Court. The Court thus held, "from a reading of the rules, it is clear that the defendant can file the counter-claim before delivering his defence or before the time limit 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 of 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 counterclaim even after the suit had been decreed against him, which, in my view, could not be done." Similarly, Andhra Pradesh High Court in Srikanth Spinners' case (supra) while placing reliance upon the decisions of other High Courts including the case referred above held that the counter-claim cannot be set up by the defendant after filing of the written statement and particularly in the guise of amending the written statement. To similar effect is the decision of Orissa High Court in Kashi Biswanath Dev's case (supra) holding that Order 8 Rule 6-A is a bar for preferring a counter claim long after the filing of the written statement and after close of evidence in the suits.
5. The precise ambit of Order 8 Rule 6-A has been considered by the apex Court in Mahendra Kumar and Anr.'s case (supra) and the Court held as under:-
"The next point that remains to be considered is whether Rule 6A(1) of Order VIII, Civil Procedure Code bars the filing of a counter-claim 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 counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 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 provisions 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 filing of the written statement, the counter claim was, therefore, quite maintainable. Under Article 113, 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 or limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit Under Section 3(2)(b), Limitation Act, had been filed by the appellants within three years from the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong in dismissing the counter-claim."
In view of the decision of the apex Court, I have no hesitation in holding that Order 8 Rule 6A(1) of the Code does not prevent a defendant from raising the plea of counter-claim even after filing of the written statement provided cause for counter-claim had arisen before the time fixed for filing written statement had expired. The judgment cited by the petitioners in the case reported as 1996(4) Supreme Court Cases, 699, does not help the case of the petitioner in any manner.
6. Accordingly, I am of the view that no error is discernible on the perusal of the order impugned which is in conformity with the view taken by the apex Court in Mahendra Kumar and Anr.'s case (supra). The revision petition being devoid of merit is accordingly dismissed.