Jharkhand High Court
Munga Lal Gupta & Anr vs Hussaini Mahto & Ors on 11 April, 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
MISCELLANEOUS APPEAL No. 257 of 2009
WITH
MISCELLANEOUS APPEAL No. 258 of 2009
WITH
MISCELLANEOUS APPEAL No. 259 of 2009.
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In M.A. No. 257 of 2009:
1. Munga Lal Gupta
2. Srimati Sundari Devi ... ... ... ... ... ... Appellants
Versus
1. Hussaini Mahto
2. Baldeo Mahto
3. Ram Gahan Mahto ... ... ... ... ... ... Respondents
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In M.A. No. 258 of 2009:
1. Munga Lal Gupta
2. Srimati Sundari Devi ... ... ... ... ... ... Appellants
Versus
1. Gopal Chandra Verma
2. Jay Prakash Narayan
3. Sudhir Kumar Verma
4. Praduman Sahay ... ... ... ... ... ... Respondents
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In M.A. No. 259 of 2009:
1. Munga Lal Gupta
2. Srimati Sundari Devi ... ... ... ... ... ... Appellants
Versus
1. Anil Kumar Sinha
2. Gopal Chandra Verma
3. Jai Prakash Verma
4. Praduman Sahay ... ... ... ... ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE POONAM SRIVASTAV
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For the Appellants : Mr. L.K. Lal, Advocate.
For the Respondents : M/s. Rajeev Ranjan Tiwary and Arbind Kumar Sinha,
Advocate.
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C.A.V. ON 1.4.2011. PRONOUNCED ON 11.4.2011.
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7. 11.4.2011. The instant three appeals arise out of common Title Suit No. 42 of 1998 instituted by Munga Lal Gupta, the plaintiff against Gopal Chandra Verma 2. and other defendants for declaration of right, title and interest over the suit land described in Schedule A attached at the foot of the plaint and also a declaration to the effect that the defendants have no right, title and interest in the suit property. The trial court decreed the suit in favour of the plaintiff, against the contesting defendants by Sub Judge I, Garhwa vide judgment and decree dated 29th April, 2008.
2. The trial court framed as many as seven issues. Issue Nos. 3, 4, 5, 6 and 8 were decided together while decreeing the suit. The three appeals were preferred against the said judgment-Title Appeal No. 11 of 2008 preferred by the appellants Hussaini Mahto, Baldeo Mahto and Ram Gahan Mahto; Title Appeal No. 12 of 2008 by Gopal Chandra Verma, Jay Prakash Narayan, Sudhir Kumar Verma and Praduman Verma and Title Appeal No. 13 of 2008 by Anil Kumar Sinha. The three appeals were clubbed together and decided in common judgment by the District Judge, Garhwa vide judgment dated 25th August, 2009 and the decree dated 1st September, 2009. The three appeals have been preferred by the respective appellants which are once again being decided simultaneously by this judgment.
3. Heard Mr. L.K. Lal, learned counsel appearing for the appellants and Mr. Rajeev Ranjan Tiwary assisted by Mr. Arbind Kumar Sinha, learned counsel appearing for the respondents.
4. The appellate court was of the opinion that the trial court was in error while adjudicating all the issues together, whereas, in a declaratory suit, the question of title as well as other connected issues have to be gone into separately and meticulously and the sale deed which was the basis of the plaintiffs' claim should have been examined in its proper perspective so that to substantiate that the vendor of the sale deed had title to execute the sale deed in favour of the vendee which is the foundation stone of the entire plaint case and chain of title should have been complete,therefore, the judgment of the trial court was set aside and the case was remanded to the trial court to pass a fresh judgment in accordance with law on the individual issues referred in the judgment of the appellate court.
5. Mr. L.K. Lal, learned counsel appearing on behalf of appellants, while assailing the judgment of the District Judge has raised a number of questions. The first criticism of the learned counsel is that the judgment of remand cannot stand the legal scrutiny in view of the Code of Civil Procedure (for short "C.P.C."). Argument is that the court should have proceeded under Order XLI Rule 25 C.P.C. The court was liable to frame the issue or issues and remit the same for a fresh trial and determine questions of fact and law which the appellate court considered essential to settle the rights of the parties and if necessary, to take additional evidence if the circumstances 3. called for. It was the particular issue framed specifically should be remanded instead of setting aside the complete trial court judgment for a fresh decision.
6. The next argument is to the effect that the appellate court has remanded the entire case for retrial without even assessing the evidence and recording a finding that the evidence was insufficient or the decision of the trial court calls for a complete overhaul of the judgment.
7. The third argument is that the contesting parties i.e. the plaintiffs and the defendants had knowledge of the questions in dispute, even if certain issues were not framed, then the appellate court should have proceeded under Order XLI Rule 24 C.P.C., he should have framed issues and recorded its own finding. Since there is no finding by the appellate court regarding insufficiency of evidence, in such a circumstance, the appellate court was liable to pronounce the judgment itself resettling the issue, if necessary, especially determine the suit, notwithstanding the judgment of the court below. The lower appellate court apparently failed to look into the trial court judgment and the questions to be decided after remand stood already decided by the trial court.
8. The last argument is that the Apex Court as well as the various High Courts has repeatedly maintained that litigation should not be prolonged and protracted and endeavour should be made to decide the question itself instead of directing a complete retrial. The learned counsel has emphasised the factual aspects to highlight his argument that the factual questions raised by the appellate court relating to Ext. A, the deed of settlement/gift deed allegedly executed by Tilak Dhari Mahto in favour of Jagan Mahto, Biren Mahto and Sita Mahto. The appellate court recorded a finding expressing its doubt in respect of the gift deed or the deed of settlement in favour of Jagan Mahto, Biren Mahto and Sita Mahto from which they derived their title and if it was not a valid settlement then the consequent right to execute sale deed and finally the validity of title on the basis of such a sale deed. The appellate court also expressed its doubt regarding plaintiffs claim since it is not on the basis of having any right as a raiyat of the State of Bihar by virtue of adverse possession.
9. Mr. Rajeev Ranjan Tiwary, learned counsel appearing on behalf of the respondents while disputing the arguments and challenging the questions raised by Mr. L.K. Lal that remand should have been made under Order XLI Rule 24 or Rule 25 C.P.C. and the entire judgment of the trial court could not be quashed. It is submitted by the respondents' counsel that Section 107 C.P.C. deals with the general provisions relating to appeal. Section 107 C.P.C. reads as under:-
4."107. Powers of the appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
10. The appellate court has power under Section 107 (b) C.P.C. to remand the case and not necessarily determine it himself or to frame issue and refer only the said issue for retrial. It is further stated that in the instant case since the lower appellate court considered that question of facts requires readjudication and, therefore, instead of remitting a single issue, it has clearly stated that separate issue should have been framed regarding the fact that the chain of title of the plaintiffs is complete from its initial stage i.e. from the stage of settlement till the date the sale deed was executed. Unless the chain of title is complete, the suit could not be decreed declaring title of the plaintiff. The plaintiff was liable to substantiate its claim and, therefore, the appeal was rightly remanded and the judgment of trial court set at naught. The learned counsel has further stated that since the settlement in favour of Tilak Dhari Mahto is specifically disputed; therefore, the question of inheritance does not arise. In absence of inheritance Jagan Mahto, Biren Mahto and Sita Mahto-nephew of Tilak Dhari Mahto had no title and Tilak Dhari Mahto could not have gifted the disputed property and, therefore, the chain was incomplete. Besides it is also argued that the instant case remand order is in fact one under Order XLI Rule 23A C.P.C. In the present case, the appellate court has not disposed of the appeal on a preliminary point. In fact the learned District Judge has reversed the decree in appeal and directed the trial court for a retrial and the appellate court has exercised the same powers as under Rule 23 of Order XLI C.P.C.
11. While replying the arguments of the respondents counsel, the appellants counsel reiterated his argument and disputed that it is a remand under Order XLI Rule 23 or 23A C.P.C.
12. After hearing the respective counsel for the parties at length and going through the judgment of the lower appellate court, it is evident that the trial court recorded its judgment by clubbing all the issues and the final conclusion was arrived without analysing individual questions. The facts of the case, the legal questions that emerges and thereafter the entitlement of relief of the plaintiff is all taken together without taking into consideration that the questions framed in separate issues are independent in nature. The 5. relief of declaration of title and possession were to be decided separately while going into the question of title, the court should have traced the right of settlement and consequent sale deed and the initial title separately and thereafter the question of possession since the relief was for a declaration of title as well as a declaration of possession. In case the settlement as alleged by the plaintiffs was a question of dispute between the two persons between Aliyar Mahto and Tilak Dhari Mahto, the court was liable to give a specific and separate decision regarding the gift deed by Tilak Dhari Mahto in favour of Jagan Mahto, Biren Mahto and Sita Mahto who had also executed the sale deed, the vendor of the plaintiffs. I am not inclined to give any finding on the merits of the case, but while examining the judgment of the lower appellate court, I am in agreement with the conclusions arrived at that the issues framed are liable to be decided separately as well as the question whether the settlement was made by the ex-landlord in the joint name of Aliyar Mahto and Tilak Dhari Mahto and whether Tilak Dhari Mahto executed the gift deed in favour of Jagan Mahto, Biren Mahto and Sita Mahto was valid and thereafter the question of right to execute the sale deed and the consequent title of Bansi Prasad Gupta, the vendor of the plaintiffs should have been decided as an individual issue. The judgment cited by the counsel appearing on behalf of the appellants in Gaya Mahto vs. Lila Devi and others [2004 (3) J C R 624 (Jhr)] is a case which deals with the remand of a case without recording any finding that the retrial of the suit was necessary and, therefore, it was held the mandate of Rule 24 C.P.C. was not valid and further said that ordinarily remand of a case under Rule 23A is not correct. This finding is based only because the appellate court considered that the reasonings given by the trial court in some respect was wrong or inconsistent with the evidence. This is not the circumstance in the instant case. The lower appellate court has gone through the entire record and evidence, thereafter recorded specific reasons that since all the issues have been inter-linked resulting in an improper adjudication and a declaration without tracing out chain of title. This is admittedly required to be done after taking evidence and recording a specific and a separate conclusion. Finding has been recorded that the trial court did not critically examine the issue involved in the case and joined multifarious issue; whereas each of the issue required independent adjudication on the basis of evidence. Evidence recorded to prove one issue could not be taken to be sufficient to arrive at a conclusion in respect of all the issues and, therefore, the order of remand is not under Rule 24 or 25 of Order XLI C.P.C. as asserted by the learned counsel and, in my view, the remand order does not call for any interference in the instant appeal.
6.13. For the reasons given above, I do not find any merit in the argument of the learned counsel appearing on behalf of the appellants. The miscellaneous appeals lack merit and are, accordingly, dismissed. However, no order as to costs.
14. It is, however, made clear that the trial court shall proceed expeditiously without granting any undue adjournment to either party and additional evidence shall be allowed only if it is necessary. Appropriate opportunity should be given to both the parties and the matter shall be decided within a period of six months from the date the lower court records is received by the trial court. The office is directed to remit the entire lower court records along with a copy of this order to the trial court within a period of two weeks from today.
(Poonam Srivastav, J.) AKS.Cp.3.
IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 863 of 1993 (R).
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Ravindra Taunk and others ... ... ... ... ... Appellants Versus Smt. Vasanti B. Taunk and others ... ... ... ... Respondents.
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CORAM: HON'BLE MRS. JUSTICE POONAM SRIVASTAV
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For the Appellants : M/s. P.K. Prasad, Senior Advocate and
Ayush Aditya, Advocate.
For the Respondents No. 1, 2 and 4: Mr. Lalit Kumar Lal, Advocate For the Respondents No. 5, 6 and 7: M/s. V. Shivnath, Senior Advocate and D.K. Chakravorty, Advocate.
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ORDER
57. 9.3.2011. The instant first appeal was filed in the year 1993 challenging the judgment dated 29th May, 1993 and the decree dated 10th June, 1993 passed by 2nd Additional Subordinate Judge, Jamshedpur in Partition Suit No. 122 of 1990 decreeing the plaintiff-appellant's suit in part relating to item nos. 1,2,3 and 5 of Schedule B of the plaint while disallowing the plaintiff's claim for partition in respect of item nos. 4 and 6 to 13 of Schedule B.
2. Sixteen defendants were arrayed as respondents in the instant appeal. Notices were sent to all the respondents after the appeal was admitted on 4.11.1995.
3. Mr. V. Shivnath, learned senior counsel assisted by Mr. D.K. Chakravorty, filed their memo of appearance on behalf of defendants- respondents no. 5, 6 and 7 and also preferred counter claim in respect of the properties shown in Schedule B of the plaint at serial nos. 7, 9 and 10. The cross-objection has been preferred in the month of October, 2004 with an application under section 5 of the Indian Limitation Act for condoning the delay in filing the cross-objection. The delay in the instant case is reported by eight years nine months and eight days (3010 days).
4. Mr. P.K. Prasad, learned senior counsel assisted by Mr. Ayush Aditya and Mr. Lalit Kumar Lal, Advocate have appeared on behalf of the appellants to oppose the maintainability and the admission of the counter claim preferred at the instance of the respondents no. 5, 6 and 7.
5. Learned counsel appearing on behalf of the defendants-respondents who have preferred their counter claim has prayed for condonation of delay which has vehemently been opposed by the appellants.
6. At the very outset, learned counsel appearing on behalf of the defendants-respondents, has placed the order sheet regarding service of summons to the respondents dated 1st of February, 1996. On perusal of the said office report, it transpires that it is reported that-
"the notices on respondents no. 6 and 16 were received by respondents no. 7 and 11 respectively who are relatives to each other and residing in the same house. service is valid by the court below and S.R. is kept on the record.
Sd/-
1.2.1996".
7. In support of the application for condonation of delay, affidavit along with the application and four supplementary affidavits have been filed to which counter affidavits have also been preferred. It is submitted that the aforesaid office report do not show that respondent no. 6 was served, in fact, respondent no. 5 was also not served and it was only respondent no. 7 who had accepted the notice, therefore, they had no knowledge. It is further stated that respondent no. 6 who has sworn the affidavit in support of the application for condonation of delay has stated in paragraph 3 that on or about 14.8.2004, the applicants-defendants were informed by the appellant himself in a family gathering that first appeal has been filed against the judgment and decree passed in Partition Suit No. 122 of 1990 and the same is pending. Thereafter the applicant reached Ranchi on 16th August, 2004 contacted Mr. D.K. Chakravorty who appeared in the appeal and do the needful and appearance was filed in the appeal on 16th August, 2004. In these circumstance, it was submitted that delay in filing the cross objection was not deliberate but due to the reasons that they had no knowledge about the filing of the appeal and, therefore, the cross-objection which was filed only on 14th October, 2004 along with application for condoning the delay was liable to be allowed. The three supplementary affidavits were filed on 3rd May, 2005, 19th May, 2009 and 12th December, 2009 respectively and the fourth one has been filed in the month of March, 2011. Counsel appearing on behalf of the defendants has placed provisions of Order XLI Rule 32 of the Code of Civil Procedure which provides that a party shall be allowed to participate in the proceedings.
8. counter affidavit has been filed to the I.A. for condonation of delay on 10th February, 2011. It is stated that the sole appellant was already dead before the date of knowledge claimed by the defendants-respondents and, therefore, the assertion in the affidavit sworn by defendant no. 6 on the face of it is false and not worth consideration. The appellant died on 6th December, 2001 and was substituted in the first appeal on 22nd April, 2004. Therefore, when the appearance was filed on behalf of the defendants or on the date of knowledge, as claimed by them, the sole appellant was already dead and, therefore, the reason attributed is a blatant false assertion on their part and the cross-objection which is barred by time more than eight years and odd is liable to be dismissed. These objections were raised on the last date of hearing i.e. 23rd February, 2011 of the present case. In fact, when the date of death of the appellant was brought to the notice of the Court during course of argument, the case was adjourned at the instance of the defendants-respondents' counsel. Thereafter the last supplementary affidavit has been filed which has also been replied by the appellant.
9. The explanation given by the defendants is that the mention of knowledge from the appellant in a family gathering does not specifically mention the name of the dead appellant but it was appellant-Ravindra Taunk. In reply, the substituted appellant Ravindra Taunk, appellant no. A (1)
(a) himself has filed the affidavit denying to have given any information to respondent no. 6 regarding pendency of the appeal in the High Court in any family gathering whatsoever.
10. Mr. L.K. Lal who addressed the Court only on the question of limitation has emphatically stressed that the delay of eight years nine months and eight days is not such a delay which can be condoned casually and by merely making a statement that the applicant came to know about the pendency of the first appeal in a family gathering unless there was a specific assertion regarding what was the function where all the family members had gathered specially when they were also not on a very cordial term; what was the occasion and who had informed him, the Court cannot treat the delay of 1030 days lightly and condone it especially in a case where the explanation is laced with falsity, he deserves no sympathy whatsoever. Mr. Lal has pointed out that the office report dated 1st February, 1996 is of no help since the original service report submitted by the process server dated 7th December, 1995 clearly shows sufficient service on the defendants/ respondents no. 5 and 7 personally and also that the service was sufficient on respondent no. 6 as respondent no. 7 had accepted the notice on his behalf.
11. On perusal of the service report dated 7th December, 1995, the signature of respondent no. 5 is clear and, therefore, it leads support to the objection raised by Mr. L.K. Lal, Advocate. Another question raised by him that the affidavit filed in support of the original application for condonation of delay under section 5 of the Indian Limitation Act is sworn by respondent no. 6, but it does not show that he is swearing an affidavit on behalf of respondents no. 5 and 7 as well is also worth notice.
12. Reliance has been placed on a decision of the Apex Court in Pundlik Jalam Patil vs. Executive Engineer, Jalgaon Medium Project and another [(2008) 17 Supreme Court Cases 448]. In the said case, the Apex Court decried the practice adopted by the Government body and its action of taking resort to false plea in its anxiety to get rid of the bar of limitation. The Supreme Court declined to give any extension of period of limitation. Reliance has been placed especially of paragraphs 11 and 12 of the said decisions where the Supreme Court was of the view where incorrect statement in the application seeking condonation of delay is made, it is sufficient to reject the application without any further enquiry.
13. Counsel appearing on behalf of the defendants though reiterated that merely because the details of the function where the appellant had met the defendants was not given and it was mentioned that knowledge was gained from the appellant himself does not constitute any falsity on the part of the applicant claiming benefit of section 5 of the Indian Limitation Act . It was also highlighted that an application on behalf of respondents no. 5, 6 and 7 was filed for grant of injunction vide I.A. No. 168 of 2005. Counter affidavit was filed on 16th March, 2005 and there were certain other documents annexed with the said I.A. and Annexure R-1/A was relied upon by the court when the injunction was granted on 5th May, 2005. This argument on behalf of the applicants-defendants is in support of the contention that since respondents no. 5, 6 and 7 are all partners of one of the properties and there is evidence of jointness, therefore, they are entitled to prefer cross-objection. However, this assertion is not in support of the challenge made by Mr. L.K. Lal against the grant of delay to condone the limitation and treat the cross objection within time.
14. Mr. V. Shivnath has placed two decisions in support of his cross- objection. Ravinder Kumar Sharma vs. State of Assam and others [(1999) 7 Supreme Court Cases 435] which relates of section 11 and Order XLI Rule 22 (1) of the Code of Civil Procedure where it was held that even without filing appeal or cross objection, the defendant-respondent can for the purpose of sustaining the impugned part of the decree or attacking the findings on the part of the decree passed against him is entitled to do so. Reliance has also been place on two decisions of the different High Courts in Balwant vs. Mainabai (AIR 1991 Madhya Pradesh 11) and Nalini and others vs. Padmanabhan Krishnan and others (AIR 1994 Kerala 14).
15 Besides the objection on the question of limitation, Mr. P.K. Prasad has questioned the maintainability of the cross-objection. The ground for challenging the admission of the cross objection is firstly because though respondents no. 5, 6 and 7 were arrayed as defendants in the partition suit, failed to file written statement and did not contest the suit. It is also brought to my notice that defendant no. 6 who has filed various affidavits in this Court appeared as a witness in favour of the plaintiff as P.W. 5 and supported the claim of defendants no. 1, 2 and 4 in respect of the subject matter of the instant cross-objection and, therefore, his cross-objection should not be entertained. Cross objection has been filed in respect of the properties shown at serial nos. 7, 9 and 10. Defendants No. 1, 2 and 4 had filed their written statement in respect of the properties shown at serial nos. 7, 9 and 10 of the schedule and the present cross objection is filed in respect of these very properties, the appellant has preferred the appeal for the properties in respect of other items regarding which the suit was dismissed, but since the respondents did not file any written statement, they are completely debarred from preferring any cross-objection at the appellate stage. Reliance has been placed on two decisions of the apex Court in Ramesh Chand Ardawatiya vs. Anil Panjwani [(2003) 7 Supreme Court Cases 350 para-28 & 29]. The extract of paragraph 28 is quoted below:-
"If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim, being utilised as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter- claim therein. Equally, there would be no question of a counter-claim being raised by way of "subsequent pleading" as there is no "previous pleading" on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the trial court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the court to entertain a belated counter-claim may not prejudice the defendant because inspite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim."
As well as in a recent judgment of Hon'ble Supreme Court in Gayathri Women's Welfare Association vs. Gowramma and another [(2011) 2 Supreme Court Cases 330, paragraphs 41 to 45], the extract of paragraph 42 is quoted below:-
"In such circumstances, we are unable to accept the conclusions of the High Court that the discretion exercised by the trial court was in any manner illegal or arbitrary in rejecting the counter claim of the respondents. We may notice here the observations of this Court in Rohit Singh which are as follows:-
"18.....A counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so-called counterclaim of [Respondents] 3 to 17 by the trial court after the framing of issues for trial, was clearly illegal and without jurisdiction."
These observations would show that the dismissal of the counter claim by the trial court was neither illegal nor without jurisdiction. In fact the direction issued by the High Court would clearly run counter to the aforesaid observations. In the aforesaid case, this Court was considering a situation where the evidence had been closed, arguments on behalf of the respondents had been concluded, the suit was adjourned for arguments of the appellants and the suit was dismissed for default. Subsequently, it was restored. Thereafter the respondents filed an application for amending the written statement. The counterclaim was filed by the intervener. In these circumstances, it was observed that at this stage no counterclaim could be entertained."
Mr. Prasad has also emphasised on the provision of Order XLI Rule 22 of the Code of Civil Procedure-Submission is that though there is a scope of raising objection at the stage of appeal but not in a case where the defendant has not cared to file a written statement during the trial.
16. I have given a careful consideration to the argument advanced by the respective counsel and also gone through the record. The two questions that arose for consideration at the stage of appeal, whether the counter claim preferred at the instance of respondents no. 5, 6 and 7 should be entertained or not? The two grounds of challenge are: (i) on the question of limitation and that the appeal which was preferred in the year 1993 and notice was served on 1st of February, 1996, the counter claim has been filed in the month of October, 2004, can be entertained at such a belated stage. The prayer for condoning the delay is to be allowed or not; and (ii) since the defendants choose not to file written statement during the trial and the suit has been decreed in respect of properties nos. 1, 2, 3 and 5, can the defendants no. 5, 6 and 7 be permitted to prefer their counter claim at such a belated stage?
17. Decision of the Apex Court regarding counter claim is evidently very clear that the counter claim is not generally to be allowed if it is not contained in the original written statement and specially after the issues have been framed, filing of the counter claim at that stage of trial will open a fresh spate of controversial question. In the instant case, admittedly the suit has been decreed in respect of certain properties and the appeal has been preferred in respect of the other properties, no counter appeal has been filed regarding grant of decree in favour of the appellants. The defendants who choose to sit back and not contest the suit have suddenly woken up to prefer the counter claim at the appellate stage and that too much after the appeal has been filed. Whatever the questions have been raised in the counter claim, it would require fresh evidence and would reopen a flood gate which cannot be permitted in law. The Apex Court clearly held in the case of Rohit Singh vs. State of Bihar (Jharkhand) (AIR 2007 Supreme Court 10) that counter claim cannot be entertained after issues are framed and evidence is closed. Thus in the instant case, it is a first appeal where the contesting respondents-defendants have come forward with the counter claim, evidently no written statement was filed, so it is as if the defendants are being allowed to file written statement in the plaint in the appeal for the first time which gives a complete go by to the principles enunciated by the Apex Court as well as the scheme of Order VIII Rule 6A of the Code of Civil Procedure. No doubt the court has discretion to permit the written statement being filed belatedly and this discretion to permit containing plea in the nature of set off or counter claim but that should also be within a reasonable time and the facts and circumstances brought forth by the persons claiming the relief getting his counter claim admitted must be so apparent and vocal to spell out that the parties were unable to file a written statement for reasons beyond their control and highlight each and every circumstance which had prevented him from filing a written statement earlier. The right to make a counter claim is a statutory right and only in highly exceptional case, a counter claim may be permitted at a later stage, but in no circumstance, at the stage of appeal which is pending since more than 17 years. It has not been established or demonstrated that refusal on the part of the court to entertain a belated counter claim will prejudice them since they have been sitting tight till date completely unaware. So far the submission on behalf of the defendants by the learned counsel is that the respondents cannot be denied participation in the proceedings is concerned, refusal to entertain the counter claim will not amount to refusal of participation in proceedings. Submissions of the counsel appearing on behalf of the respondents- defendants are that they are entitled to challenge the decree as well as the findings at the stage of appeal under Order XLI Rule 33 of the Code of civil Procedure is not disputed. They have been arrayed as party and they can very well participate in the proceedings, but this would not entitled him to bring on record the counter-claim against the appellant at this stage. The counter claim must necessarily finds its place in the written statement once the right to prefer a written statement is lost by the defendant or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter claim can be allowed to be raised.
18. In the circumstances, the objections raised regarding maintainability of the counter claim in the instant appeal is perfectly justified and, therefore, I am of the view that the counter claim cannot be entertained at this stage and it is liable to be dismissed.
19. So far the objection regarding limitation is concerned, it is an additional factor which goes without saying that the delay is more than eight years and cannot be treated to be such a case which can be granted lightly. The defendants have tried to wriggle out from certain corners when it was pointed out at the instance of the appellant regarding false assertion. In my view, it is not proper to give my opinion so far the correctness or falsity of the explanation for condonation of delay is concerned. but the fact is that I am not satisfied with the reasons and explanation given by the applicant in his application under section 5 of the Indian Limitation Act. Admittedly, defendant no. 6 appeared as plaintiff witness during trial and, therefore, he cannot deny that he had no knowledge about the pendency of the suit but it is unbelievable that the suit pertains to the year 1990 and he did not care to find out what has happened in the suit where he was a party and also appeared as a witness and is one of the beneficiaries since it was a partition suit.
20. For the reasons stated above, counter claim cannot be taken on record on both the counts. The limitation cannot be condoned since the explanation does not appear to be satisfactory on the face of it and the objection on the ground of maintainability is a valid objection besides in view of the decisions and the principles laid down by the Apex Court, the counter claim cannot be entertained at this stage. It is, accordingly, dismissed but no order regarding costs.
(Poonam Srivastav, J) AKS.Cp.2.