Rajasthan High Court - Jaipur
Madan Lal vs Rajendra Kumar And Ors on 28 January, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.19802/2012. Madan Lal Vs. Rajendra Kumar & Ors. Date of order : January 28, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Satish Chandra Mittal for the petitioner. ****** Reportable BY THE COURT:-
This writ petition has been filed by defendant petitioner - Madan Lal assailing the order dated 4/8/2012 passed by Additional District Judge No.5, Kota by which his application for taking counter-claim on record has been dismissed with cost of Rs.200/-.
Respondent No.1 filed a suit alleging therein that a shop and house admeasuring 60x15=300 square feet owned by petitioner situated in Village Naya Nohara, Tehsil Ladpura, District Kota, was purchased by him from Chittar Lal. Petitioner obtained loan from Oriental Bank of Commerce respondent No.2 by hypothecating the shop and the house with the said bank and respondent No.1 stood surety for the petitioner. Petitioner however could pay only 4-5 installments and did not pay the remaining installments. He sold the said house to respondent No.1 by holding out that he has repaid the entire housing loan of the bank and the property is free from all encumbrances. Relying on the statement of petitioner, respondent No.1 purchased the property for sale consideration of Rs.3,00,000/- in cash in presence of Nathu Lal, Raju, Ram Ratan, Chittar Lal and Banwari. An agreement to sell was executed between plaintiff and defendant and defendant-petitioner handed over all the documents of the property to plaintiff-respondent No.1. Respondent No.1 always remained willing and ready for getting the sale-deed executed but it was not executed by the petitioner. It was thereafter that plaintiff-respondent No.1 came to know that defendant-petitioner has not repaid the loan and has got agreement to sell executed by concealing this fact. Plaintiff-respondent No.1 sent a legal notice to the defendant-petitioner on 4/1/2003. It was further pleaded in the plaint that respondent No.1 is a bonafide purchaser for sale consideration aforesaid and there is every possibility that respondents No.2 and 3 banks will recover the outstanding amount of the housing loan against petitioner by attaching and selling the aforesaid property. Plaintiff served a notice on 16/4/2003 to respondent No.2-bank mentioning therein that defendant has given Account No.147A of respondent No.3 Canara Bank in the name of Priyanka Wood Works, of which he is proprietor having balance of Rs.4,00,000/- in that account. He had a plot near Khade Ganesh Ji in Kota, pakka house in village Naya Nohara and another plot in Borekhera, Kota and respondent No.2 may satisfy those demands from such properties. Respondent No.2-bank however did not recover the amount from the aforesaid properties of the petitioner but sent the officers on 5/8/2003 threatening plaintiff-respondent No.1 either to deposit the outstanding amount or ask the defendant-petitioner to deposit the same. Defendant-petitioner requested the plaintiff-respondent to execute the sale-deed but he declined to do so on the ground that he is in judicial custody. Prayer therefore was made that the decree for specific performance of the agreement be passed against the defendant-petitioner and the respondent-banks be restrained by way permanent injunction from attaching and auctioning the aforesaid house.
Defendant-petitioner submitted written statement pleading therein that since he was also in judicial custody therefore delay occurred in filing counter claim. It was further pleaded that he did not agree to sale the said house to the plaintiff. He could not have done so because those properties were hypotheticated with respondent No.2 Oriental Bank of Commerce. Plaintiff-respondent No.1 stood guarantor of petitioner in the housing loan. Plaintiff requested defendant to sign some stamp papers for guarantee in another matter. Defendant believing him signed some blank stamp papers on which forged agreement to sell was prepared by the plaintiff. According to the market value, the house has value of Rs.20,00,000/- lacs on which Oriental Bank of Commerce advanced housing loan as well as overdraft relief of Rs.2,00,000/-. When petitioner got registry of the house and land attached to it admeasuring 60x50 square feet, the same was valued at Rs.30,00,000/- by the Sub- Registrar and registration stamps and fee of Rs.1.5 lacs were obtained. Therefore the plea of the plaintiff-respondent of selling the said house and shop by the defendant-petitioner to him for sale consideration of Rs.3,00,000/- is incorrect. The agreement to sell being forged, plaintiff was not entitled to any decree of specific performance. The defendant was carrying his business in the name & style of Priyanka Wood Works. Plaintiff is his cousin, being son of his aunt i.e. sister of his father. He stood his guarantee. They always have had cordial relations but subsequently, intentions of plaintiff became bad. He prepared forged agreement to sell on blank stamp papers signed by petitioner and got registered a false criminal case against petitioner for the offence of rape against wife of his brother and got the petitioner arrested. When the defendant was got released from judicial custody, a written statement was filed on 25/3/2004 and he told the facts of the case to his advocate. However, complete facts could not be brought on record for want of documents. It was in the background of the aforementioned facts that on 28/4/2011, an application along with counter claim was filed under Order 8 Rule 6A CPC with the prayer that the same be taken on record. It was contended that the counter-claim could not be incorporated in the written-statement because the defendant was in judicial custody. Plaintiff took possession of the house from respondent No.3 while petitioner was in judicial custody. By way of counter-claim, it was prayed that possession of the house and shop be restored back to the defendant and plaintiff may be directed to pay Rs.20,000/- per month as mesne profit/occupation charges for illegal possession of the house.
Application so filed by the defendant was severally contested by the plaintiff contending that counter-claim was not included in the written statement and also in the application subsequently filed by the defendant under Order 6 Rule 17 CPC seeking amendment. It was therefore not permissible to take on record the counter-claim at this belated stage, which has been filed simply with the intention to delay the proceedings. Learned trial court after hearing the parties rejected the application dated 28/4/2011 vide order dated 4/8/2012 with cost of Rs.200/-. Hence, this writ petition to challenge the same.
I have heard Shri Satish Chandra Mittal, learned counsel for the defendant-petitioner and perused the material on record.
Shri Satish Chandra Mittal, learned counsel for the defendant-petitioner has argued that the trial court has erred in law in dismissing the application disallowing the counter-claim to be taken on record only because the issues had been framed and evidence of the plaintiff started. Learned counsel submitted that counter-claim could be taken on record even at that stage. Learned counsel in support of his argument, has placed reliance on the judgment of Supreme Court in Smt.Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day : AIR 1997 SC 3985 to argue that the Supreme Court in that case held that if the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing written statement or extended date of filing written statement, such counter claim can be filed under Order 8 Rule 6A CPC even after filing the written statement. Learned counsel argued that similar view has been taken by the Supreme Court in Mahendra Kumar and another Vs. State of M.P. And others : AIR 1987 SC 1395. Learned counsel for the petitioner has also placed reliance on the judgment of Supreme Court in Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others : AIR 1996 SC 2222 and argued that Supreme Court held therein that a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action, which should be adjudicated without relegating the defendant to file a separate suit. Learned counsel argued that this Court in Pavneet Kaur Vs. Jasvinder Singh & Another has while relying on the judgment of Supreme Court in Smt.Shanti Rani Das Dewanjee supra held that there is no limitation prescribed in the Code of Civil Procedure for filing the counter claim if the same is actuated on a cause of action, which has arisen prior to filing of the written statement. Learned counsel submitted that the law on the question of filing of the counter-claim thus has not been correctly appreciated by the learned trial court. Learned counsel further argued that the learned trial court has not correctly appreciated the law laid down while relying on the judgment of Uttrakhand High Court in Dr.P.D. Padilia and another Vs. District Judge, Nainital and others : AIR 2008 Uttrakhand 11. The impugned-judgment should therefore be set-aside and the counter-claim submitted by the petitioner be allowed to be taken on record.
I have given my anxious consideration to the submissions and perused the material available on record.
The core question that has to be decided in the present case is whether the counter-claim can be allowed to be taken on record if it is filed after framing of the issues and commencement of the evidence, evidence of the plaintiff has started and matter reaches at the stage of recording evidence of the plaintiff. In other words, whether or not counter-claim can be allowed to be taken on record when the trial has commenced. Law on this question is well settled that if the cause of action had arisen before or after filing of the suit and such cause of action continues upto the date of filing written statement or extended date of filing written statement, same can be filed even after filing of the written statement. In other words, counter-claim under the provisions of Order 8 Rule 6A CPC can be made in the written-statement itself or separately after filing of the written-statement subject however to the condition that it should be founded on the cause of action, which had arisen even upto the date of filing written-statement.
Supreme Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani : AIR 2003 SC 2508 after considering many previous judgments on the subject held that right to file counter claim runs with right of filing written statement. It was held by the Supreme Court, as under:-
There are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. 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 utilized as an instrument for forcing upon a re-opening 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.
It would thus be evident from the aforesaid observations that when the issues are framed and the case is set down for trial or in other words, the trial has already commenced, the counter claim can be refused to be taken on record. However, a counter-claim can be filed by way of a subsequent pleading under Rule 9 or subsequently by seeking amendment to be incorporated in the written-statement, subject of course to the discretion of the court vested in it under Order 8 Rule 9 CPC. Similar view was reiterated by the Supreme Court in Rohit Singh & Ors. Vs. State of Bihar : AIR 2007 SC 10, wherein it was held that counter claim cannot be submitted after the issues are framed and evidence is closed. In recent judgment of Supreme Court in Gayathri Women's Welfare Association Vs. Gowramma and another : AIR 2011 SC 4, it was held by the Supreme Court that generally the counter claim not contained in the original written statement may be refused to be taken on record, especially if issues have already been framed.
In view of the aforesaid judgments of Supreme Court, therefore, it cannot be said that the learned trial court erred in law in relying on the judgment of Uttrakhand High Court in Dr.P.D. Padilia supra, which rightly held that counter-claim cannot be filed at belated stage after commencement of trial. Although defendant can be permitted to file a separate suit based on such cause of action. Karnataka High Court in Smt.Parvathamma Vs. K.R. Lokanath and Others : AIR 1991 Karnataka 283 held that if the counter claim is set up in the written statement, it has to be set up before the issues are framed and at any rate before recording of the evidence commences. If the counter claim is set up after evidence is adduced, it would cause a great prejudice to the plaintiff in the suit because at the time of additional evidence, he may not be aware with the case set up in counter-claim as it was not on record, therefore, he cannot be required to adduce evidence having a bearing on the counter claim. Allowing counter claim to be taken on record after commencement of the evidence would amount to ignoring Rules 6A to 6C of Order VIII of the C.P.C. and would defeat the very object of treating the counter claim as a cross suit.
In my considered view, allowing counter claim after issues have been framed and the evidence of the plaintiff is commenced, would defeat the very object of treating the counter claim as a cross suit and trying the issues arising therefrom along with the issues arising in the suit. If that is allowed, it would frustrate the very intendment of Rules 6A, 6B & 6C of Order 8 of the Code of Civil Procedure, as held by the Supreme Court.
In this connection, following observation of the Supreme Court in para 28 of Ramesh Chand Ardawatiya supra may be referred:-
28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. 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 utilized as an instrument for forcing upon a re-opening 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. xxxxxxxxxxxxxxxxxxxxxx.
In view of above discussion, I do not find any infirmity in the order passed by the learned trial court in refusing to allow counter-claim to be taken on record.
Writ petition is therefore dismissed.
(MOHAMMAD RAFIQ), J.
Anil/37 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW