Calcutta High Court (Appellete Side)
Tazammul Haque vs Sakina Haque & Ors on 10 July, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 21 10.7.2017
CO 1881 of 2017 gd Tazammul Haque Vs. Sakina Haque & Ors.
Mr. Asaduz Zaman Mondal ..for the Petitioner The opposite parties have been served, other than the opposite party no.1; but they are not represented.
The petitioner is a defendant in a partition suit and complains of his counterclaim not being taken on record on grounds which, according to the petitioner, are not tenable.
By way of the counterclaim, the petitioner sought to assert that the petitioner's title to the portion of the alleged joint property over which the petitioner claims possession is derived from one or more deeds executed in favour of the petitioner herein or the predecessor-in- interest of the petitioner. According to the petitioner, the plaintiffs have referred to the relevant deeds and have sought to avoid them on some ground without seeking a cancellation thereof. The counterclaim was made to seek a relief therein that the relevant deeds were valid and binding.
It is the admitted position that the counterclaim was not filed at the time that the written statement was filed by the petitioning defendant. The counterclaim was 2 sought to be introduced at a stage when the trial in the suit had effectively commenced in the sense that the first witness called by the plaintiffs was in the process of being cross-examined.
The petitioner claims that the bar under Order VIII Rule 6A of the Code pertains to the time of accrual of the cause of action and not the timing of the filing of the counterclaim. In support of the petitioner's case, a judgment reported at 2016(2) ICC 721(SC) has been relied upon.
Ordinarily, a defendant files a counterclaim along with the written statement. The counterclaim part of the written statement is treated as a plaint and such counterclaim survives the dismissal of the suit on merits for the counterclaim to be decided separately. Though there does not appear to be any bar to a counterclaim being filed separately than with the written statement, the filing of a counterclaim otherwise than along with the written statement should be regarded as an amendment to the written statement. In this case the attempt to file the counterclaim was made at a stage when the trial in the suit had effectively commenced. Since the suit in this case is of the year 2012, the proviso to amended Order VI Rule 17 of the Code stood attracted and such proviso prohibits an amendment being sought after the commencement of the trial.
As to the judgment referred to by the petitioner, it 3 is evident from paragraph 5 thereof that a previous judgment of the Supreme Court was distinguished therein on the ground that in such previous judgment there was gross delay in filing the counterclaim. Thus, the delay in filing a counterclaim was accepted as a ground for its rejection. However, the matter pertaining to the proviso to Order VI Rule 17 of the Code was not discussed in the judgment since it is evident from the first sentence thereof that the suit in which the issue fell for the Supreme Court's consideration was a pre-2002 amendment suit of the year 1992. In such a suit which was filed prior to the amendment being introduced to Order VI Rule 17 of the Code, the proviso would not come into play.
Since the petitioner herein applied for the counterclaim at a belated stage when the trial in the suit had commenced without any explanation as to why the counterclaim could not have been carried to court earlier, the trial court was justified in rejecting the same. The other ground as to the failure to put in the court fees is not considered.
CO 1881 of 2017 is dismissed.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
4(Sanjib Banerjee, J.)