Punjab-Haryana High Court
Mohinder Singh vs Karnail Singh And Others on 20 July, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 6039 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 6039 of 2010
Date of Decision : July 20, 2012
Mohinder Singh .... Petitioner
Vs.
Karnail Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Jagdish Manchanda, Advocate
for the petitioner.
Mr. Sanjiv Gupta, Advocate
for respondent no. 1.
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L. N. MITTAL, J. (Oral) :
Defendant no.7 - Mohinder Singh, by filing this revision petition under Article 227 of the Constitution of India, has assailed order dated 26.08.2010 (Annexure P-10) passed by learned Additional Civil Judge (Senior Division), Pehowa, thereby dismissing application of the petitioner for filing written statement along with counter claim.
Suit was filed by respondents no.1 and 2/plaintiffs against proforma respondents no.3 to 8 and petitioner. Trial court decreed the suit C. R. No. 6039 of 2010 2 vide judgment and decree dated 05.12.2008 (Annexure P-7). Defendant no.7 - Mohinder Singh preferred first appeal against judgment and decree of the trial court. Learned Additional District Judge, vide judgment dated 27.07.2010 (Annexure P-8), set aside the judgment and decree of the trial court and remanded the suit to trial court with direction that defendant no.7
- Mohinder Singh shall be allowed to file written statement and shall be given only one opportunity to lead evidence.
Defendant no.7 moved application (Annexure P-9) in trial court alleging that he was filing his written statement along with counter claim and the same be allowed to be filed along with application for interim injunction. Learned trial court, vide impugned order (Annexure P-10), dismissed the said application observing inter alia that the appellate court, vide judgment (Annexure P-8), allowed defendant no.7 to file his written statement and not any counter claim. Feeling aggrieved, defendant no.7 has filed this revision petition.
I have heard counsel for the parties and perused the case file. 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. C. R. No. 6039 of 2010 3 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 vs. Tajinder Pal Singh and others reported as 2009 (4) Civ. C. C. 755 and Nini Kumar Jain vs. 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 vs. 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 vs. 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.
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 of 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 C. R. No. 6039 of 2010 4 (supra) and Nini Kumar Jain (supra). In those cases, judgment of Hon'ble Supreme Court namely Mahendra Kumar vs. 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 Muslim Jamat Bilali of course 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 Bollepanda P. Poonacha (supra), cited by counsel 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 Mahendra Kumar (supra) also, counter claim can be filed even subsequent to filing of written statement.
For the reasons aforesaid, it becomes manifest that impugned C. R. No. 6039 of 2010 5 order of the trial court is patently perverse and illegal, and therefore, unsustainable in the eyes of law. The instant revision petition is therefore allowed. Impugned order (Annexure P-10) passed by the trial court is set aside. Application (Annexure P-9) moved by defendant no.7-petitioner in the trial court is allowed and defendant no.7-petitioner is permitted to file counter claim in the trial court subject to the condition that cause of action to file counter claim should have accrued before filing of the written statement.
Trial court is directed to decide the suit as expeditiously as possible and preferably within nine month of receipt of certified copy of this order.
July 20, 2012 ( L. N. MITTAL ) monika JUDGE