Calcutta High Court (Appellete Side)
Akd vs M/S. Jalan Impex & Ors on 13 November, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
37 13.11.17 C.O. 3517 of 2017
Ct. No. 2
Varun Agaarwal
akd Vs.
M/s. Jalan Impex & Ors.
With
C.O. 514 of 2017
M/s. Jalan Impex
Vs.
Indusco Plastics Private Ltd. & Ors.
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Mr. Kushal Chatterjee, Mr. Surendra Kumar Sharma.
... for the petitioner in C.O. 3517 of 2017.
Mr. Nilanjan Bhattacharjee, Ms. Paromita Roy.
... for the petitioner in C.O. 514 of 2017 & ... for the opposite party no. 1 in C.O. 3517 of 2017 An anomalous situation has been created by the defendants of the suit, who while delivering the defence against the claim of the plaintiff also filed a counterclaim, on the effect of the substitution of the heirs and legal representatives of the deceased.
Admittedly the plaintiff took out an application for substitution of the legal representatives of the deceased defendant no. 2. The Trial Court allowed the said application and directed the heirs and legal representatives as indicated in the schedule to the said petition to be substituted. Subsequently the Court directed the steps to be taken by the plaintiff upon the substituted defendants.
The substituted defendants are the heirs and legal representatives of the deceased defendant no. 2, who filed a written statement cum counterclaim. After the substitution is allowed on the application filed by the plaintiff, the substituted defendants took out an 2 independent application for substitution, as the carriage of the proceeding in relation to the counterclaim lies with them upon the death of the said defendant.
The grievance of the plaintiff is that the Trial Court is not proceeding with an application filed by it raising the maintainability of the counterclaim in view of the proviso appended to Order VIII Rule 6A of the Code of Civil Procedure.
The substituted defendant no. 2(a), who is the petitioner in C.O. 3517 of 2017, says that since the counterclaim has a separate entity despite the fact that substitution has been effected at the behest of the plaintiff, the substitution must also be done in the counterclaim.
I am unable to persuade myself to accept such proposition of law. The counterclaim is filed by the defendant in a suit instituted against him/her. The said counterclaim though treated as a plaint, but is not assigned any separate number and even if the plaint is withdrawn or discontinued or dismissed, the counterclaim shall be proceeded with. It would proceed under the same number and style.
A suit commences on the plaint and in order to categorize the nature of the suit special characters are assigned for the purpose of regulating, guiding and managing the judicial affairs. The substitution is to be effected in a suit originating from filing of the plaint and once the substitution is done, such substitution is effected in the suit and not in the plaint, as suggested by the said substituted defendant.
The expression "suit" appearing under Order XXII of the Code shall have to give a restrictive meaning and to include only the plaint. It would frustrate the legislative intent, as any interlocutory application filed in the suit shall be required to be amended or a fresh substitution is to be made therein. The scope and purpose under Order VIII Rule 6A of the Code is that a defendant in a suit may set up by 3 way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to such 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 counterclaim is in the nature of a claim for damages or not.
It is, therefore, manifest from the aforesaid provision that the defendant has a claim against the plaintiff and, therefore, it is not necessary that a separate cause-title is to be given in the counterclaim incorporating any third party to the suit or the claim being made against any other person than the plaintiff. Once the substitution has been effected in the suit, it automatically enures to the benefit of the counterclaim as well and this Court, therefore, does not find any necessity to take out a fresh application for substitution for counterclaim.
The Trial Court is directed to formally record the disposal of the application for substitution taken out by the petitioner on the basis of the findings recorded hereinabove.
The Trial Court is directed to fix the date of hearing of the application under Section 151 of the Code filed by the plaintiff and shall see that the same is disposed within four weeks from the date of the communication of this order.
The Trial Court shall also make endeavour to dispose of the injunction application taken out by the plaintiff in the suit as expeditiously as possible and preferably within a period of four weeks from the date of the communication of this order.
Both the revisional applications are thus disposed of.
There will be no order as to costs.
(HARISH TANDON, J.) 4