Andhra HC (Pre-Telangana)
Indian Bank, Warangal Branch vs Srinivasa Timber Depot And Ors. on 25 October, 1991
Equivalent citations: 1992(1)ALT535
ORDER J. Eswara Prasad, J.
1. The Revision is directed against an order of the learned I Additional Subordinate Judge, Warangal allowing I.A.No. 769/1988 in O.S.No. 163/1980, permitting amendment of the written statement filed by the respondents, setting up counter-claim against the petitioner-bank for a sum of Rs. 30,000/-with interest at the rate of 18% per annum from 20-11-1979.
2. The petitioner filed the suit for recovery of the amounts said to be due from the respondents. The respondents filed written statement on 20-11-1981 and the evidence of the plaintiff was closed. On 15-11-1988, the respondents filed I.A.No. 769/1988 praying for an amendment of the written statement, as mentioned above. The learned judge allowed the petition and the present revision is filed by the plaintiff, aggrieved by the said order.
3. Sri P.R. Prasad, learned counsel for the petitioner contended that under Order VIII, Rule 6-A C.P.C., the application for amendment was not maintainable, as the written statement was filed long prior to the filing of the amendment petition. The said contention of the learned counsel is not tenable. Order VIII, Rule 6-A. C.P.C. reads 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 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-suits 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."
4. The contention of the learned counsel that the words "before the defendant has delivered his defence" mean that the counter-claim should be filed before defendant filed his written statement, cannot be accepted. Such a contention, was considered by the Supreme Court in Mahendrakumar v. State of H.P., and it was rejected. It was held that on the face of Rule 6-A(1) C.P.C., filing of counter-claim by the defendant after he had filed his written statement is not barred. It is therefore, to be held that the counter-claim can be filed before the defendant delivered his defence. In this case, the plaintiff's evidence was completed and the defence is yet to open.
5. The learned counsel next contended that the counter-claim is barred by limitation inasmuch as, written statement was filed on 20-10-1981 and the application for amendment of the written statement was filed on 15-11-1988. This is a matter which should be left open for decision in the suit. The necessary plea with regard to limitation can be taken by the petitioner and relevant issue will be framed and decided by the trial court.
6. The further contention of the learned counsel that the counter-claim is not tenable in view of Section 176 of the Contract Act also, need not detain us in disposing this revision. The merits of the claim made by the respondents has to be gone into only at the trial of the suit and cannot be decided in this revision.
7. I see no reason to interfere with the order of the lower court permitting the respondents to put-forth a counter-claim in the suit. The revision is accordingly dismissed. Pending disposal of the revision this court on 2-11-1989 granted interim direction to the respondents not to alienate the property. The said order will continue and shall remain in force during the pendency of the suit. No order as to costs.