Dismissed¶62

Sushil Kumar Lodhi v. Tekchand Lodhi

Chhattisgarh HC17 Apr 2024WP227/120/2023

Case brief

AI extract

What is this about?

Belated counter claim; admissibility of counter claim filed after framing of issues; Order VIII Rule 6A CPC; Section 151 CPC; Article 227 writ jurisdiction; Ashok Kumar Kalra outer limit till framing of issues; illustrative factors for delay; Mahesh Govindji Trivedi distinguished; declaration of title and permanent injunction suit; Will dated 21.10.2005 of Pannalal Lodhi; Civil Suit No. 164-A/2017, Raipur; Writ Petition (227) No. 120 of 2023; High Court of Chhattisgarh, Bilaspur; decision dated 18-04-2024; liberty to file separate civil suit.

What did the court decide?

Petition dismissed; petitioners/defendants No. 1 to 4 given liberty to file a civil suit before the concerned trial Court for redressal of their grievances. ¶62

Sushil Kumar Lodhi Vs Tekchand Lodhi — Writ and Judicial Review | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Petition dismissed; petitioners/defendants No. 1 to 4 given liberty to file a civil suit before the concerned trial Court for redressal of their grievances.

¶62

Issue for consideration

Whether the order dated 15.11.2022 of the trial Court denying permission to defendants No. 1 to 4 to file their counter claim (filed on 21.04.2022, after framing of issues on 13.12.2017) suffers from infirmity or illegality warranting interference under Article 227 of the Constitution of India.

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Court's answer

Relying on Ashok Kumar Kalra, a counter claim may be filed by defendants prior to framing of issues subject to other terms, but in any case not after framing of the issues; consequently the counter claim filed on 21.04.2022, after issues were framed on 13.12.2017, could not be entertained.

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Ratio / Principle

No infirmity or illegality was found in the impugned order of the trial Court warranting interference in the writ petition.

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Key takeaways

Mahesh Govindji Trivedi affords no support to the petitioners because in that case issues had not been framed prior to filing of the counter claim, which is why the Apex Court there permitted filing even after 13 years.ratio¶61
The petitioners/defendants No. 1 to 4 were granted liberty to file a civil suit before the concerned trial Court for redressal of their grievances.ratio¶62

Detailed headnote1 paragraphs

Chhattisgarh High Court (Naresh Kumar Chandravanshi, J.), deciding a writ petition under Article 227 of the Constitution of India with consent of parties, dismissed the challenge to the order dated 15.11.2022 of the 9th Civil Judge, Class-II, Raipur in Civil Suit No. 164-A/2017, by which the defendants' application under Section 151 CPC to file a counter claim was rejected. The counter claim was filed on 21.04.2022, after issues were framed on 13.12.2017 and after the case was fixed for evidence. Applying Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri, (2020) 2 SCC 394, the Court held that although Order VIII Rule 6A CPC does not impose an absolute bar on filing a counter claim after the written statement, the outer limit is the framing of issues: a counter claim may be filed prior to framing of issues, but in any case not after framing of the issues. Mahesh Govindji Trivedi v. Bakul Maganlal Vyas & others, 2022 Supp. SAR (Civ) 1080, relied on by the petitioners, was distinguished because therein issues had not been framed when the counter claim was filed, even though it was filed after 13 years. The petition was dismissed, with liberty to the defendants to institute a separate civil suit before the trial Court.

¶1

¶2

NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (227) No. 120 of 2023

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Sushil Kumar Lodhi, aged about 25 years,

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Devendra Kumar Lodhi, aged about 19 years,

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Hemant Kumar Lodhi, aged about 21 years,

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All are S/o Shri Bisan Lodhi,

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Bisan Lodhi, aged about 45 years, S/o Late Pannalal Lodhi, All R/o Ward no. 2, Avanti Bai Chowk, Lodhipara, Aarang, Distt. Raipur (C.G.)

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---- Petitioners/Defendant No. 1 to 4

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Versus

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Tekchand Lodhi, aged about 29 years,

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Hemchand Lodhi, aged about 27 years,

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Dulchand Lodhi, aged about 25 years,

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Leelachand Lodhi, aged about 23 years, All are sons of Late Ishwarlal Lodhi, All R/o Ward no. 4 Lodhipara, Aarang, Tehsil Aarang, Distt. Raipur (C.G.)

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{Plaintiffs}

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State of Chhattisgarh through Collector, Raipur (C.G.)

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{Defendant No. 5.}

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----Respondents

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For Petitioners : Mr. Ravindra Sharma, Advocate.

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For Respondents No. 1 to 4 : Mr. Malay Kumar Jain, Advocate.

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For Respondent No. 5 : Mr. R.C. S. Deo, Panel Lawyer.

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Hon'ble Mr. Justice Naresh Kumar Chandravanshi

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Order On Board

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18-04-2024

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With the consent of the parties, the matter is heard finally.

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This petition has been preferred under Article 227 of the Constitution of India challenging the order dated 15.11.2022 passed by 9^th Civil Judge, Class-II, Raipur in Civil Suit No. 164-A/2017 {Tekchand Lodhi & others v. Sushil Kumar Lodhi & others } whereby an application filed by petitioners /defendants No. 1 to 4 under Section 151 of the Code of Civil Procedure for permitting them to file counter claim has been denied and counter claim was declined to be taken on record.

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[For the sake of convenience, the parties would be

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referred to as their status shown in the plaint]

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Learned counsel appearing for the defendants No. 1 to 4, petitioners herein, would submit that plaintiffs filed civil suit of declaration of their title by declaring Will dated 21.10.2005 executed by one Pannalal Lodhi in favour of defendants as null & void, and also to grant permanent injunction in their favour and against the defendants. It is submitted that defendants No. 1 to 4 filed their written statement (Annexure P-3) on 5.12.2017; issues were framed on 13.12.2017, thereafter, the case was fixed for plaintiffs' evidence, after that, defendants No. 1 to 4 filed their counter claim alongwith application under Section 151 of the CPC (Annexure P-4), which was declined by the trial Court to be taken on record on the ground that it

¶32

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was filed belatedly i.e. after framing of issues. It is further submitted by defendants No. 1 to 4 that although some delay was occurred in filing the counter claim, but when counter claim was filed on 21.04.2022 (Annexure P-4), on that date, the case was fixed for framing additional issues, therefore, it cannot be said that it was belatedly filed.

¶34

Learned counsel appearing for the defendants No. 1 to 4, petitioners herein, while referring to judgment rendered by the Apex Court in the matter of Mahesh Govindji Trivedi V. Bakul Maganlal Vyas & others¹ , would submit that in aforesaid case, counter claim was filed by defendant, even after 13 years, despite that Apex Court, while setting aside judgment passed by learned Division Bench of the High Court of Judicature at Bombay, granted permission to defendants therein to file counter file. In that case, Hon'ble Apex Court has also dealt with the judgment of Hon'ble Supreme Court in the matter in the case of Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri² , on the basis of which, the trial Court has declined to accept the counter claim of defendants No. 1 to 4/petitioners, therefore, it is prayed that petitioners/defendant No. 1 to 4 may be permitted to file counter claim in concerned civil suit pending before the concerned trial Court.

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Per contra, learned counsel appearing for respondents No. 1 to 4/plaintiffs while supporting the impugned order passed by the trial

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1 2022 Supp. SAR (Civ) 1080 2 (2020) 2 SCC 394

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Court order passed by the trial Court is well reasoned and speaking order based on law laid down by the Supreme Court in the case of Ashok Kumar Kalra (supra), therefore, writ petition is liable to the dismissed.

¶39

I have heard learned counsel appearing for the parties and perused the material placed on record.

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It is not in dispute that as per contention putforth by learned counsel appearing for the parties and the facts appears from the record that counter claim was filed by defendants No. 1 to 4 on 21.4.2022 i.e. after framing of issues and even after fixing for case for evidence. Although, subsequently, case was fixed for framing additional issues, but only this fact cannot put shadow on the factual aspect that issues were framed prior to filing of counter claim.

¶41

In the matter of Ashok Kumar Kalara (supra), their Lordships of the Supreme Court while dealing with the similar issued have held as under :-

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“18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant

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and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter claim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC.

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We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter- claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim,

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which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

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i. Period of delay.

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ii. Prescribed limitation period for the cause of action pleaded.

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iii. Reason for the delay.

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iv. Defendant’s assertion of his right.

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v. Similarity of cause of action between the main suit and the counterclaim.

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vi. Cost of fresh litigation.

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vii. Injustice and abuse of process.

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viii. Prejudice to the opposite party.

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ix. and facts and circumstances of each case.

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x. In any case, not after framing of the issues.

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Perusal of aforesaid law laid down by the Apex Court, particularly, clause (x) of paragraph 21 specifically found fit for instant case, as it clearly shows that counter claim may be filed by the defendants prior to framing of issues subject to other terms, as observed by the Apex Court, but in any case, not after framing of the issues.

¶59

In view of the foregoing discussion, I do not find any infirmity or illegality in the order impugned passed by the trial Court warranting interference in the case.

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Although in the case law i.e. Mahesh Govindji Trivedi (supra), relied upon by learned counsel for the petitioner, counter claim was permitted to be filed even after 13 years, but in aforesaid case also prior to filing counter claim, issues were not framed. In this premise, Hon'ble Apex Court had allowed defendants to file counter claim even after lapse of 13 years. Therefore, the defendants No. 1 to 4/petitoner do not get any support from the aforesaid case law cited by them.

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Accordingly, the petition filed under Section 482 of the Cr.P.C. fails and is hereby dismissed. However, the petitioners/defendants No. 1 to 4 are at liberty to file civil suit before the concerned trial Court for redressal of their grievances.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Amit/

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Sushil Kumar Lodhi v. Tekchand Lodhi

Case brief

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Sushil Kumar Lodhi v. Tekchand Lodhi

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