Orissa High Court
Harekrushna Giri And Another vs Smt. Annapurna Das And Others on 21 April, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.1072 of 2014
In the matter of an application under Article 227 of the Constitution
of India.
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Harekrushna Giri and another .... Petitioners
Versus
Smt. Annapurna Das and others .... Opposite parties
For Petitioners -- Mr.Maheswar Mohanty
Advocate
For Opposite parties -- Mr.Dipak Kumar Dey,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing:11.4.2017 & Date of Judgment:21.4.2017
Dr.A.K.Rath, J.This petition challenges the order dated 17.5.2014 passed by the learned Civil Judge (Sr.Division), Jaleswar in C.S.No.1 of 2011. By the said order, the learned trial court rejected the application of the defendants under 6 Rule 17 CPC for amendment of the written statement to introduce the counter claim.
2. The opposite parties as plaintiffs instituted the suit for partition and permanent injunction impleading the petitioner as well 2 as opposite parties 7 to 11 as defendants. The defendants 1 and 7, petitioners herein, entered contest and filed written statement denying the assertions made in the plaint. After closure of the evidence of the plaintiffs, the defendants filed an application for amendment of the written statement seeking to introduce the counter claim. It is stated that they were not aware about the affairs of the property at the time of filing of the written statement. They could not disclose the land particulars, nor produced all documents while filing of the written statement. In the proposed amendment they sought declaratory relief and permanent injunction. The plaintiffs filed objection stating therein that evidence from the side of the plaintiffs have been closed. No reason has been assigned in the application for amendment of the written statement. By order dated 17.5.2014, the learned trial court rejected the application.
3. Mr.Mohanty, learned Advocate for the petitioners submitted that defendant no.1 was looking after the case. Since he was ill, necessary facts could not be pleaded. On 16.8.2013 when the plaintiffs threatened the defendants to evict them from their possession, they filed counter claim. He further submitted that the kissam of one of the plot is Abadayoga Anabadi. The plaintiffs issued notice under Section 80 C.P.C. to the State Government and filed an application to implead the State of Orissa.
4. Per contra, Mr.Dey, learned Advocate for the opposite parties 1 to 6 contended that after closure of the evidence of the plaintiffs, the application for amendment of the written statement seeking introduction of counter claim has been filed. The State of 3 Orissa is neither necessary nor proper party in a suit for partition. The petition has been filed to protract the litigation.
5. Before proceeding further it is apt to refer Order 8 Rule 6 A C.P.C., which is hub of the issue:-
"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.
(2) Such counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."
6. On a bare reading of clause (1) of Rule 6A of Order 8 C.P.C. it is evident that the cause of action for filing of counter claim must accrue to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has 4 expired, whether such counter claim is in the nature of a claim for damages or not.
7. The apex Court in the case of Rohit Singh and others Vrs. State of Bihar (now State of Jharkhand) and others, (2006) 12 SCC 734, held that a counter claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so-called counterclaim of Defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction.
8. The said case was referred to in Vijay Prakash Jarath Vrs. Tej Prakash Jarath, AIR 2016 SC 1304 and explained that since the cause of action has accrued before the written statement was filed, the apex Court held that no serious or irreparable loss would be suffered by the plaintiff. Consequently the counter claim was accepted.
9. In Bollepanda P.Poonacha and another Vrs. K.M.Madapa (2008) 13 SCC 179, the apex Court held :-
"11. The provision of Order VIII Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The respondent in his application for amendment of written statement categorically raised the plea that the appellants had tresspassed on the lands in question in the summer of 1998. Cause of action for filing the counterclaim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, 5 thus, clearly not maintainable. The decision of Ryaz Ahmed is based on the decision of this Court in Baldev Singh v. Manohar Singh.
12. Further, the facts of the instant case are distinguishable from those of Ryaz Ahmed. In that case, the proposed amendment by the defendant was allowed to be filed as he wanted to make a counterclaim by way of a decree for grant of mandatory injunction to remove the built up area on the disputed portion of land. It was therein held that instead of driving the defendant to file a separate suit therefor, it was more appropriate to allow the counterclaim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counterclaim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed.
13. Baldev Singh is not an authority for the proposition that the Court while allowing an application for amendment will permit the defendant to raise a counter claim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6-A. Some of the decisions of this Court in no uncertain terms held it to be impermissible. See Mahendra Kumar v. State of Madhya Pradesh, Shanti Rani Das Dewanjee v. Dinesh Chandra Day.
14. In Gurbachan Singh v. Bhag Singh, this Court clearly held;
"3......The limitation was that the counterclaim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time-limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damages or not."
10. The defendants have filed their written statement on 29.10.2011. It is not disputed that the cause of action for the counter claim arose on 16.8.2013. Thus, the cause of action has accrued to the defendants against the plaintiffs after delivery of their defence. In view of the embargo under clause (1) of Rule 6A of Order 8 CPC, the defendants cannot introduce the counter claim by way of 6 amendment. Further, the State of Orissa is a neither necessary nor proper party.
11. The logical sequitur of the analysis made in the preceding paragraphs is that the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 21st April, 2017/CRB.