Orissa High Court
Mangulu Pirai vs Prafulla Kumar Singh And Ors. on 31 July, 1987
Equivalent citations: AIR1989ORI50, AIR 1989 ORISSA 50, (1987) 64 CUT LT 653
JUDGMENT Agrawal, C.J.
1. This application in revision filed by defendant 3 is directed against an order of the trial Court rejecting his application for amendment of the written statement by incorporating certain statements in the nature of a counter-claim.
2. Opposite parties 1 to 3 as plaintiffs filed Title Suit No. 5 of 1984 in the Court of the Munsif, Dhenkanal, against the order of the Tahasildar, Dhenkanal, directing their eviction from the suit land Defendants 1 and 2 as well as defendant 3 filed written statements denying the plaintiffs' claim of possession over the suit land and claiming the possession of defendant No. 3.
The hearing of the suit commenced on 19-8-1985 and was closed on 15-40-1985. Arguments were also fully heard on 5-11-1985, and 20-11-1985 was fixed for judgment. In the meantime, on 16-11-1985, defendant No. 3 filed an application for amendment of the written statement under the label of Order 8, Rule 6A(1) of the Civil P. C. (for short 'the Code') with a prayer for addition of two paragraphs as paras 24 and 25 to the written statement reading as follows : --
"24. That the defendant after getting delivery of possession from the aforesaid Subas Dei has been possessing the land till Dec., 1983 and thereby he has acquired title in respect of the suit land and this may be treated as a counter-claim against the plaintiff.
25. That this Honourable Court has jurisdiction to decide the counter-claim of this defendant against the plaintiff and the defendant is willing to pay the Court-fee as per the valuation of the suit and if the claim of the defendant 3 succeed, he may given delivery of possession of the suit land."
The plaintiffs filed objection to this petition for amendment contending, inter alia, that the proposed amendment would change the nature and character of the suit and, therefore, it should be rejected.
The trial Court by the impugned order has rejected the petition on the ground that it was belated and that it should have been filed either before the defendant had delivered his defence or before the time limited for delivering his defence had expired.
3. When the revision application was taken up by a learned Judge of this Court and some decisions of this Court were cited in support of the Order of the trial Court, he entertained doubt regarding their correctness and referred the matter to the Division Bench. That is how it has been placed before us.
4. The question that arises for consideration is as to whether a counter-claim can be filed after the filing of the written statement or after the time fixed for the said purpose had expired.
5. There was no provision for filing a counter-claim by a defendant before the amendment of the Code in the year 1976 when Rule 6A was inserted. Sub-rule (1) which is relevant reads as follows : --
"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 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."
6. Two decisions of this Court which have considered the matter are Shri Shri Kashi Biswanath Dev. v. Paramananda Routrai, (1985) 1 OLR 256 : (AIR 1985 Ori 260), and Prafulla Kumar Samantaray v. Smt. Ranjita Samantaray, (1987) 63 Cut LT 337. The learned Judges in both the above cases have held that the provision of R. 6A was clear to the effect that a counter-claim must be filed with respect to a cause of action either arising before or after the filing of the suit, but before the defendant delivers his defence or before the time limited for delivering his defence has expired.
7. In my opinion, the words "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 expired" appearing in Order 8, Rule 6A(1) mean to limit the right of the defendant to set up by way of counter-claim in respect of a cause of action which arose after he delivered his defence or after the expiry of the date for filing his defence only. In other words, the enabling provision introduced by the 1976 amendment entitles a defendant in a suit to 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 him 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". But any cause of action which may arise after the filing of the written statement by the defendant or after the expiry of the date for filing the defence will not come within the scope of Rule 6A(1). There is no other limitation for filing a counter-claim as otherwise that would defeat the law of limitation. The restriction regarding the limit of the accrual of the period of the cause of action is based upon sound public policy, as otherwise, the defendant may go on filing one counter-claim after another against theplaintiff in the same suit until it was disposed of and thus the suit may be indefinitely delayed. A similar view has been taken by a learned Judge of the Patna High Court in Dipnarain Sinha v. Dinanath Singh, AIR 1981 Pat 69.
8. The above discussion explains the rigour regarding the filing of the counterclaim and thus I venture to hold that the decisions rendered by both the learned Judges of this Court is not correct. I find full support for this view from a recent decision on the Supreme Court in Mahendra Kumar v. State of Madhya Pradesh, AIR 1987 SC 1395, where it has been clearly laid down that Rule 6A(1) does not bar the filing of a counter-claim by the defendant after filing of his written statement. It only provides with respect to the cause of action regarding which the defendant could file a counter-claim and that is that the cause of action must have accrued to the defendant before he had delivered his defence or before the time limited for delivering his defence has expired. In view of the above authoritative decision, the decisions of this Court referred to earlier must be deemed to be no longer good law and, therefore, they are hereby overruled.
9. In that view of the matter, it is to be seen as to whether the proposed amendment should be allowed or not. The amendment was sought for at a very belated stage and no other statement of fact has been pleaded save and except that defendant 3 purported to set up a counter-claim with respect to his right to. get delivery of possession from the plaintiff. As already held earlier, although no time limit could be fixed for filing a counterclaim, nonetheless at the stage at which it was filed, i.e., after the close of argument when the matter was fixed for judgment, the amendment of the written statement even simpliciter would work out injustice to the plaintiff and is bound to delay the matter. Nor does it seem necessary for the purpose of determining the real question in controversy.
10. A question has also been raised that a counter-claim can only be made with respect to money claims and not in suits of this nature. But on the facts of the present case, I do not enter into any discussion on this aspect of the matter.
11. From the aforegoing discussions, I do not see any merit in this application and it is accordingly dismissed. In the facts and circumstances, however, the parties shall bear their own costs.
S.C. Mohapatra, J.
12. I agree.