Sultan Khan Vs Arpit Agrawal

passed by learned First District Judge, Korba, in Civil Suit No. A/4/2024, whereby the counter claim filed by the defendant after filing of the written statement has been taken on record.

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Learned counsel for the petitioner would submit that the petitioners are plaintiffs before the learned trial Court, and they are prosecuting their suit for declaration of title and permanent injunction with respect to the suit property shown in Schedule-A annexed with the plaint. The suit was filed by the plaintiffs on 22.03.2024. The summons have been served upon the defendant, who filed his written statement on 22.06.2024, and thereafter, the learned trial Court has framed issues on 29.06.2024. Subsequent to the framing of the issues, the defendant filed his counter claim on 08.10.2024. The counter claim of the defendant was for declaration of title, vacant possession, and for permanent injunction of the suit land. The plaintiffs have filed the written reply of the said counter claim on 07.01.2025 and raised objection that the said counter claim was filed after framing of issues, which cannot be taken on record as provided under Order 8 Rule 6 A of the CPC, therefore, it should be struck off from the record. The learned trial Court rejected the objection raised by the plaintiff, and the counter claim filed by the defendant was taken on record on the ground that the written statement of the counter claim has already been filed by the plaintiffs. She would further submit that, as per the law laid down by the Hon’ble Supreme Court in the case of Ashok Kumar Kalra vs. Wing CDR Surendra Agnihotri

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& Ors ., reported in 2020(2) SCC 394, it clearly mandates that after filing of the written statement, after framing of issues the counter claim cannot be filed, which is exactly the position in the present case also. Therefore, the order passed by learned trial Court dated 07.02.2025 may be set aside.

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On the other hand, learned counsel appearing for the respondent supported the impugned order.

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I have heard learned counsel for the parties and perused the record of the trial Court.

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The filing of the counter claim is provided under Order 8 Rule 6 A of the CPC, which reads as under:

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“6A. Counter-claim by defendant -(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 counter-claim 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.

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Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

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(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

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(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

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(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

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The provisions of the aforesaid Order 8 Rule 6 A of the CPC provided that the defendant of the suit may, in addition to his right of pleading of set off under Rule 6, may set up a counter claim against the claim of the plaintiffs. However, in view of the judgment passed by the Hon’ble Supreme Court in the case of Ashok Kumar Kalra (supra), that such counter claim cannot be entertained if it is filed after framing of the issues and in the present suit, it has not been disputed by the parties concerned, that the counter claim by the defendant has been filed after framing of the issues. The issues have already been framed on 29.06.2024, and the counter claim has been filed on 08.10.2024, and thus, applying the principles laid down by Hon’ble Supreme Court in the case of Ashok Kumar Kalra, the order passed by learned trial Court appears to be erroneous and liable to be set aside. Accordingly, the order dated 07.02.2025, passed by learned trial Court, is set aside, and the counter claim filed by the defendant in the suit is excluded.

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The defendant is at liberty to file their civil suit in accordance with law if so advised, subject to other impediment with respect to limitation, etc.

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With the aforesaid observation, the present writ petition is allowed .

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(Ravindra Kumar Agrawal) Judge

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Alok

Sultan Khan v. Arpit Agrawal

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Sultan Khan v. Arpit Agrawal

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