Bombay High Court
Sharad Dinkar Padalkar vs Smt. Sugandha Balasaheb Jadhav on 30 August, 2013
Author: M. S. Sonak
Bench: M. S. Sonak
dss WP 11917.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11917 OF 2012
1. Sharad Dinkar Padalkar )
Age 35 yrs., Occ. Agriculture )
2. Udaysinh Dinkar Padalkar )
Age 40 yrs., Occ. Service )
3. Sou.Sangita Rangrao Patil )
Age 38 yrs, Occ. Household )
R/o. Surupali, Tal. Kagal, Kolhapur )
4. Smt. Laxmi Dinkar Padalkar )
Age 63 yrs, Occ. Household )
Nos.1,2 and 4 R/o. Kasarwada, )
Tal. Radhanagari, Kolhapur
ig ).. Petitioners
(Org. Plaintiffs)
vs.
1. Smt. Sugandha Balasaheb Jadhav )
Age 47 yrs, Occ. Household, )
R/o. Kasarwada (Patankar) )
Tal. Radhanagari, Kolhapur )
2. Sou. Gitanjali Gulabrao Ghorpade )
Age 50 yrs., Occ. Household, )
R/o. Plot No.B-13, Chourangi )
Complex Nagala Park, Kolhapur )..Respondents
(Org. Defendants)
Mr.Rahul P. Walvekar for the Petitioners.
Mr.Abhishek Deshmukh a/w. Mr. Sanjiv Sawant for the
Respondents.
CORAM : M. S. SONAK,J.
JUDGEMENT RESERVED ON : 21.8.2013
JUDGMENT PRONOUNCED ON : 30.8.2013
JUDGMENT :-
1] Rule. Rule is made returnable forthwith and heard finally.
2] By order dated 28.2.2013, the parties were put to notice that in view of the narrow controversy involved, the Writ Petition may be 1/9 ::: Downloaded on - 27/11/2013 20:13:38 ::: dss WP 11917.12 heard and disposed of finally at the stage of admission.
3] The petitioners are the original plaintiffs in Regular Civil Suit No.135 of 2007 and the respondents are the original defendants therein.
4] The petitioners filed Regular Civil Suit No.135 of 2007 seeking inter alia decree of specific performance in respect of the agreement dated 9.3.1998. It is the case of the petitioners that they are in possession of the suit property in pursuance of the agreement dated 9.3.1998. The suit was filed on 30.3.2007. The respondents filed their written statement on 12.11.2007. Therein, the respondents denied the claim of the petitioners including byway of pleading that the agreement dated 9.3.1998 is void and therefore suit for specific performance be not decreed.
5] On 27.7.2012, the respondents applied for leave to amend the written statement including by way of raising a counterclaim seeking recovery of possession of the suit property, which according to them was wrongly occupied by the petitioners. In the application made under Order VI, Rule 17 of the Code of Civil Procedure, the respondents stated that on account of inadvertence and ignorance they failed to raise a counterclaim at the stage of filing written statement.
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6] The petitioners filed response dated 30.8.2012 opposing the
application under Order VI, Rule 17, primarily on the ground that the amendment if allowed would fundamentally change the course of proceedings initiated by them. They further submitted that the counterclaim, if at all could have been raised in the written statement as originally filed. There is no provision, which permits raising of counterclaim much after written statement has been filed.
7] The learned Civil Judge Junior Division, Radhanagri (Kolhapur) by order dated 30.8.2012 has allowed the respondents' application for amendment of written statement and raising of counterclaim seeking recover of possession. This petition is directed against the order dated 30.8.2012.
8] Mr.Rahul Walvekar, the learned advocate appearing for the petitioners referred to the provisions of Order VIII, Rule 6A of the Code of Civil Procedure, 1908 and submitted that there is a clear bar for raising of a counterclaim after filing of the written statement.
He further submitted that counterclaim as raised is barred by law of limitation and by permitting the raising of such counterclaim, the fundamental basis of the proceedings initiated by the respondents has been altered. Besides, he submitted that the impugned order is totally cryptic and therefore indicative of non-application of mind. On all these grounds, he submitted that the impugned order is liable to 3/9 ::: Downloaded on - 27/11/2013 20:13:38 ::: dss WP 11917.12 to be set aside.
In support of the petition, he placed reliance upon the decision of the Supreme Court in the case of Bolepanda P. Poonacha & Anr. v. K.M. Madapa, AIR 2008 SC 2003 and Nagnath Jagannath Lomate & Anr v. Narsing Sambhar More & Ors., AIR 2009 Bom 133.
9] Per contra, Mr. Abhishek Deshmukh, learned advocate appearing for the respondents submitted that the counterclaim can be filed even after filing of the written statement. For this proposition, he placed reliance upon the decision of the Supreme Court in the case of Mahendra Kumar & Anr. v. State of Madhya Pradesh & Ors., (1987) 3 Supreme Court Cases 265 and a Division Bench of Madras High Court in case of Southern Ancillaries Pvt.
Ltd. v. Southern Alloy Foundaries Pvt. Ltd., AIR 2003 Madras 416.
He submitted that jurisdiction under Article 227 of the Constitution of India may not be exercised, as there is no jurisdictional error in passing the impugned order. He further submitted that amendment to written statement can be liberally permitted, particularly since the trial is yet to be commence in the Suit.
10] The provisions of Order VIII, Rule 6A of the Code of Civil Procedure, 1908, read as under:
4/9 ::: Downloaded on - 27/11/2013 20:13:38 :::dss WP 11917.12 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-suit 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."
11) In the case of in the case of Mahendra Kumar & Anr. v. State of Madhya Pradesh & Ors., (1987) 3 Supreme Court Cases 265, the Supreme Court as held that the rule 6A (1) of order VIII of the C.P.C.
does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. Relevant observations are contained in paragraph 15, which are set out below for ready reference:
15. The next point that remains to be considered is whether Rule 6-A (1) of Order VIII of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6-A (1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A (1) is that a counter-claim can be filed, provided the cause of 5/9 ::: Downloaded on - 27/11/2013 20:13:38 ::: dss WP 11917.12 action had accrued to the defendant before the defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A (1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A (1) of the Code of Civil Procedure. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable."
12] In light of the aforesaid decision of the Supreme Court, it is not possible to accept the petitioners' contention that raising of a counterclaim after the filing of the written statement is barred under the provisions of Order VIII, Rule 6-A of the C.P.C.
13] The reliance placed by Mr.Walvekar upon the decision of the Supreme Court in the case of Bollepanda (supra), is not apposite in the facts and circumstances of the present case.
In the case of Bhollepanda (supra), the Supreme Court has held that though it is not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an application for amendment of plaint, the Court in permitting amendment of a written statement for raising a counter claim is bound by the provisions of Order VIII, Rule 6-A of the C.P.C. A right to file a counterclaim is an additional right, it may be filed in respect of any right or claim, the cause of action for the same, however, 6/9 ::: Downloaded on - 27/11/2013 20:13:38 ::: dss WP 11917.12 must accrue either before or after the filing of the suit, but before the defendant has raised his defence or the time for raising the defence has expired. In the case before the Supreme Court, the defendant therein had specifically pleaded that cause of action for filing the counterclaim, had arisen in the summer of 1998, i.e., much after filing of the original written statement. In these circumstances, the Supreme Court held that amendment of the written statement in order to raise a counterclaim, the cause of action for which having arisen much after filing of the written statement, could not have been permitted.
In the present case, from the perusal of the amendment application, it is clear that the cause of action pleaded by the respondents has arisen even prior to filing of the suit itself. In these circumstances, the decision of the Supreme Court in case of Bollepanda (supra) is not applicable.
14] In the case of Nagnath Limate (supra), the counterclaim was not permitted to be raised long after settlement of the issues and the recording of the evidence of the plaintiff was over. In the present case, the trail is yet to commence. Although Mr. Walvekar is justified in contending that the impugned order is cryptic, since I am unable to find fault with the conclusion, no useful purpose will be served by interfering with the impugned order.
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15] By permitting the respondents to raise a counterclaim
perhaps multiplicity of proceedings shall be avoided. If counterclaim is not permitted, the respondents may have to file a separate suit to recover possession of the suit property. Instead, if counterclaim is permitted to be raised, the Court shall be in a position to conclude the proceedings, in the event, it comes to the conclusion that the petitioner is not entitled to specific performance.
16] The issue of limitation is not concluded merely because application for amendment has been allowed. In any case, it is clarified that the petitioner shall be entitled to file a written statement in response to the counterclaim, if the same has not already been filed and therein to raise all defences, including the defence of limitation.
17] Although the impugned order permitting amendment /raising a counterclaim is not being interfered with, interest of justice require that the respondents pay the costs for the same, which are quantified at Rs.5000/- to the petitioners. In fact, such costs ought to have been awarded by the learned Civil Judge at the time of passing impugned order dated 13.8.2012.
18] Accordingly, Rule is discharged. The interim orders, if any, stand vacated. The respondents shall, within a period of eight 8/9 ::: Downloaded on - 27/11/2013 20:13:38 ::: dss WP 11917.12 weeks, pay to the petitioner, costs which are quantified at Rs.5000/-
and report compliance to the learned Civil Judge.
(M. S. SONAK, J.) dinesh 9/9 ::: Downloaded on - 27/11/2013 20:13:38 :::