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8. Certain dates which are material shall have to be mentioned at the threshold for effective adjudication of the matter. The suit in this case was filed on 30-4-1999 for recovery of the chit amount. On 6-12-1999 the first defendant filed his written statement. On 4-2-2000 Defendants 2 to 4 filed their written statement and on 27-1-2000, the fifth defendant filed his written statement. Thereafter issues were framed in the suit and when the suit had been coming up for evidence, in the month of July, 2002 one witness was examined on the side of the plaintiff. On closure of the evidence on the side of the plaintiff, the suit had been coming for the evidence on the side of the defendants and on 6-8-2002 Defendants 2 to 5 filed a petition whereunder they sought to file the counter-claim and the said petition was numbered as LA. No. 868 of 2002 for the purpose of convenience and identity. It is obvious therefore, that Defendants 2 to 5 sought to file their counter-claim long after the filing of the written statement by them resisting the suit claim of the plaintiff and after the evidence on the side of the plaintiff had already been closed. The request of the Defendants 2 to 5 was sought to be resisted by the plaintiff on the ground that, that was not the stage at which the defendants would be permitted to file the counter and that the counterclaim at any rate would not be permitted as it was barred by limitation. It is therefore, appropriate at this stage to examine the nature of the claim sought to be made by the defendants by means of a counter-claim. The main basis for filing the counter claim was the inaction on the part of the plaintiff and the consequence thereof would invariably be the discharge of the guarantors in accordance with the provisions contained in Section 134 of the Indian Contract Act. Further, inasmuch as the plaintiff was sought to collude with the first defendant and did not respond to the request of Defendants 2 to 5 and dragged the sureties to the Court knowing pretty well that the sureties stood discharged for the omission on the part of the plaintiff-creditor, the plaintiff was liable to be sued for damages of Rs. 2,00,000/- by means of a counter-claim. As can be seen from the counter-claim, the cause of action arose on 20-11-1996 when they came to know that the first defendant was also a member in the other chits of the plaintiff company and when the Defendants 2 to 5 requested the plaintiff company not to allow the first defendant to participate in the auctions to be conducted in the other chits and that on 23-11-1997, 12-24998 and 18-2-1998 when the plaintiff company allowed the first defendant to participate in the auctions despite the protest of the Defendants 2 to 5 and on 25-11-1998 when the plaintiff got issued a legal notice to Defendants 1 to 5 claiming the chit amount and on 1-12-1998 when the second defendant gave a reply requesting the plaintiff to proceed against the first defendant alone and on 7-4-1999 when the second defendant got issued the additional reply notice by requesting the plaintiff to initiate appropriate proceedings against the first defendant by attaching his properties and on 5-8-1999 when the first defendant filed insolvency petition without impleading the plaintiff company on account of the secret agreement arrived in between them. The cause of action is a bundle of facts, which gives right to the plaintiff to lay a claim against the defendants. All these facts were available to the Defendants 2 to 5 when they filed the written statement resisting the claim of the plaintiff. The suit in this case was filed on 30-4-1999. In all probability, the Defendants 2 to 5 could have filed the counter-claim along with the written statement filed by them in the suit, but they did not chose to file the same and ultimately they filed I.A. No. 868 of 2002 on 6-8-2002. Among various dates of the cause of action, the last date is 5-8-1999 when the first defendant is said to have filed insolvency petition. It is therefore, the contention of the plaintiff that the claim sought to be made by Defendants 2 to 5 against the plaintiff for damages is barred by limitation, In this scenario, it has to be seen as to whether the Defendants 2 to 5 could lay a counter-claim in the circumstances. The provision germane in the context for consideration is Order 8 Rule 6-A C.P.C. which reads thus:

6-A.(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 counterclaim 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:

10. Thus, from a perusal of Rules 6-A to 6-G, it is evident that the defendant can also make a claim against the plaintiff which should be in the nature of a counterclaim while resisting the suit, The counterclaim can be filed even when the cause of action accrued to the defendant is either before or after filing of the suit. The counterclaim may be in the nature of damages. However, the defendant shall make such a claim before he delivers his defence or before the time given for delivering his defence is expired. Invariably, the counterclaim shall be within the pecuniary jurisdiction of the Court before which the suit has been filed. Such a counter-claim will be in the nature of a plaint. The provisions which are applicable to the defendant for filing the written statement would equally apply to the plaintiff in filing his written statement to the counterclaim and the provisions of Order 9 of the Code pertaining to the default and consequences thereof would equally apply to the default of the plaintiff in the counter-claim. Ultimately, the suit as well as counter-claim will be disposed of by the Court adjudicating the rights of the plaintiff and the defendant and the decree shall follow in consequence thereof. That decree may be either in favour of the plaintiff while dismissing the counterclaim of the defendant; or may be in favour of the defendant by allowing the counterclaim and dismissing the suit; or may be partly in favour of the plaintiff and partly in favour of the defendant.

14. After having considered the provisions of Order 8 and Rules 6-A, 6-B, and 6-C and Rules 6,8 and 9 and Order 6 Rule 17, the Apex Court laid down the law stating the various modes to file the counterclaim and when to be filed. In Para-28 of the judgment, the Apex Court laid down the law thus:

"Looking to the scheme of Order 8 as mentioned by Act 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 counterclaim 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 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order 8 Rule 9 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 consequences of permitting a counterclaim 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 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".