Andhra HC (Pre-Telangana)
C. Ramesh Chander vs C.A. Hanumantha Rao on 18 December, 1998
Equivalent citations: 1999(2)ALD258, 1999(1)ALT497
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT
1. This revision is directed against the order of the learned I Junior Civil Judge, City Civil Court, Secunderabad, in IA No. 1271 of 1998 in OS No.508 of 1997 which was filed under Order VIII Rule 9 CPC praying to permit the defendant to file counter-claim under Order VIII Rule 6-A CPC.
2. Defendant is the revision petitioner herein. The respondent-plaintiff filed a suit against the revision petitioner for perpetual injunction restraining him from interfering with his constructions and pending the suit, an interim injunction was also granted in favour of the respondent in June, 1997. Subsequently, the defendant filed his written statement on 4-8-1997 and issues were also framed. While so, on 21-7-1998, the present application is filed by the petitioner contending that under the guise of the said interim injunction, the respondent-plaintiff raised further constructions in the suit premises encroaching into the site of the petitioner and on the basis of this subsequent development, the petitioner put forth a counter claim against the plaintiff and sought for a mandatory injunction against him for demolition of the alleged illegal structures over the suit schedule properties and in open site by the plaintiff. The Court below, however, dismissed the said application observing that under Order VIII Rule 6-A CPC, counter-claim shall be put forward before the defendant has delivered his defence or before the time limited for delivering his defence lias expired.
3. Learned Counsel for the petitioner attacked the said finding of the Court below, placing strong reliance upon two decisions of the Supreme Court in Jag Motion Chawla v. Dere Radha Swami Satsang, , and Shanti Rani Das v. Dinesh Chander Dey, , contending that the defendant can file counter claim even after the presentation ofthe written statement under Order VIII Rule 6-A CPC.
4. The case of the petitioner in this case is that the respondent-plaintiff tried to make illegal constructions in the suit schedule site even prior to the filing of the suit and that when the revision petitioner got issued a legal notice dated 20-5-1997, the respondent, got issued a reply on 26-5-1997 and immediately filed the present suit against the revision petitioner. It is further contended by the revision petitioner that after filing of the suit also, the respondent continued the illegal constructions in the suit schedule site under the guise of interim injunction obtained against him. It is thus his case that the cause of action for the counter claim filed by the defendant arose even prior to the filing of the suit and it continued during the pendency of the suit. In Mahendra Kumar v. State of M.P., , following which similar judgment was rendered in Shanti Rani Das case (supra), the Supreme Court had an occasion to interpret the provisions of Order VIII Rule 6-A (1) of the CPC and held as under:
"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 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-claims 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 counterclaim 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."
In the present case also, the cause of action for the counter-claim had arisen before the filing of the written statement by the revision petitioner. Therefore, following the above judgment of the Supreme Court, it must be held that the counter-claim filed by the defendant is quite maintainable.
5. In the result and for the foregoing reason, the revision is allowed. No costs.