Pankajmani Vs Prafull Kumar

2 - Nikhil Kiran S/o Chandrakant Sahu, Aged About 22 Years, R/o Village- Bhanpuri, Tahsil and District- Dhamtari, C.G. At Present Resident of House No. 153-A, Ruwabandha Sector Bhilai, District : Durg, Chhattisgarh

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3 - Chandrakant Sahu S/o Jeevdhan Ram Sahu, Aged About 52 Years, Cultivator, R/o Village- Bhanpuri, Tahsil and District- Dhamtari, C.G. At Present Resident of House No. 153-A, Ruwabandha Sector Bhilai, District : Durg, Chhattisgarh

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4 - State of Chhattisgarh, Through The Collector, Dhamtari, District : Dhamtari, Chhattisgarh (Defendants)

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... Respondents

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(Cause-title taken from Case Information System)

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For Petitioners : Mr. D.N. Prajapati, Advocate. For Respondents No.1 : Ms. Surabhi Yadav, Advocate on behalf of Mr. Hemant Kumar Agrawal, Advocate. For State : Ms. Isha Jajodiya,Panel Lawyer.

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J.

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Order on Board

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16-07-2026

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1 . The present is writ petition under Article 227 of the Constitution of India filed by the petitioner against the order dated 06-04-2024 passed by the learned First

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Civil Judge Class II Dhamtari (C.G.) in Civil Suit No.37-A/2022 whereby the application filed by defendant No.3 under Order 6 Rule 17 of the CPC for incorporating the counter claim in his written statement has been dismissed.

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2. Learned counsel for the petitioner would submit that the petitioner is defendant No.3 before the learned trial Court where present respondent No.1/plaintiff is prosecuting the suit for declaration of title, permanent injunction and for possession of the suit property. The claim of the plaintiff before the learned trial Court is that in between the predecessor in interest of the parties there was a compromise agreement dated 30-04-1998 passed in Civil Suit No.4A/1995 by the learned Civil Judge, Dhamtari in which the suit land was obtained by the father of the plaintiff and defendants late Jeevdhan. Late Jeevdhan, father of the parties sold the land of Khasra No.271/2, area 2.43 hectare of village Tarsiwan during his lifetime. The land of Jeevdhan was to be divided in his three sons in equal share, but the defendant No.1 and 2 sold his entire land of village Tarsiwan and its consideration has been utilized by him to purchase a house at Bhilai. Even the subject house has not been divided between the parties. It is also the case of the plaintiff that the defendant No.1 with collusion of defendant No.2 has got executed a will deed in his favour and got his name mutated in revenue records. Since the defendants tried to grab the entire property of his father he filed the suit. He would further submit that in the suit the defendant No.3 contested and filed his written statement on 04-04-2023. In the written statement he denied the plaint averments and pleaded that late Jeevdhan has executed a will on 10-01-2002 in favour of defendants No.2 and 3 with respect to the property obtained by him in partition and they are in possession of the same. The also denied the execution of any will deed in favour of Nikhil Kiran and denied the right and title of the plaintiff over the suit land. Subsequent to filing of the written statement, the defendant No.3 also filed an application under Order 6 Rule 17 of the CPC for incorporating the counter claim in his written statement and the said application is filed on 26-06-2023. He would further submit that by way of counter claim the defendant No.3 is claiming title by

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virtue of the sale deed dated 18-01-2002 in favour of defendant No.3 and permanent injunction against the plaintiff and other defendants. The learned trial Court has rejected the application filed by the petitioner on the ground that the counter claim should have been filed only at the time of filing of written statement and not thereafter. He would further submit that there is no restriction for the defendant to file counter claim even after filing of the written statement, but before framing of the issues. In the present case the issues have not been framed and therefore, the amendment application should have been allowed by the learned trial Court. He would further submit that filing of separate suit regarding claim of the defendant No.3 would create more complication in the suit and lead possibility of passing of two conflicting judgments with respect to the claims of the parties. Therefore, the impugned order may be set aside and the petitioner/defendant No.3 may be permitted to carry out the necessary amendment for incorporating counter claim in his written statement.

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3. On the other hand, learned counsel for respondent No.1 opposes the submission made by learned counsel for the petitioner and would submit that the order 8 Rule 6(A) of the CPC provided filing of the counter claim at the time of filing of the written statement itself. The language of Order 8 Rule 6(A) of the CPC clearly reveals that it should be filed along with the written statement. Even otherwise, the defendant No.3 may file a separate suit claiming his right and title and may get clubbed the said civil suit with the present one. The rejection of the application does not prejudice the rights of the defendant No.3. Therefore, the learned trial Court has rightly considered the provisions of Order 8 Rule 6(A) of the CPC and has rejected the application which does not require any interference.

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4. I have heard learned counsel for the parties and perused the material annexed with the petition.

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5. The issue revolves in the case around the consideration as to whether the counter claim can be filed even after filing of the written statement. In the present

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case the written statement has been filed by the defendant No.3 on 04-04-2023 and on 26-06-2023 he filed his amendment application in written statement for incorporating of the counter claim in the suit. Filing of counter claim is provided under Order 8 Rule 6(A) of the CPC, which reads as under:-

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Order 8 Rule 6-A CPC:

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" 6-A. Counterclaim 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: 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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6. The issue came up for consideration before the Hon’ble Supreme Court in

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the case of Mahesh Govindji Trivedi Vs. Bakul Maganlal Vyas and others , (2023) 11 SCC 516 and the Hon’ble Supreme Court has held that counter claim under Order 8 Rule 6(A) of the CPC can be filed even after filing of written statement, but prior to framing of issues. It has been held in paragraphs No.29 to 36 of the said judgment that:-

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“ 29. As regards the provisions of law applicable to the case, we may usefully take note of the provisions contained in Order 8 Rule 6-A of the Civil Procedure Code, 1908 ("CPC" for short) and Rule 95 of the Bombay High Court (Original Side) Rules as follows: 29.1. Order 8 Rule 6-A CPC:

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" 6-A. Counterclaim 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 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 counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.

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(2) Such counterclaim 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 counterclaim.

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

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(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints."

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29.2. Rule 95 of the Bombay High Court (Original Side) Rules:

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" 95. A defendant in a suit, in addition to his right of pleading a setoff under Order 8 Rule 6 of the Code of Civil Procedure, may set-up by way of counterclaim against the claims of the plaintiff any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defence and before the time limited for delivering his defence has expired, whether such counterclaim sounds in damages or not, and such counterclaim 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 counterclaim; and the plaintiff (if so advised) shall be at liberty to file a reply to the counterclaim of the defendant within eight weeks after service upon him or his advocate on record of a copy of the defendant’s counterclaim; and the Court or the Judge in Chambers may, on the application of the plaintiff before trial if in the opinion of the Court or the Judge such counterclaim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof and require him to file a separate suit in respect thereof."

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30. In Ashok Kumar Kalra [Ashok Kumar Kalra v. Surendra Agnihotri,

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(2020) 2 SCC 394 : (2020) 1 SCC (Civ) 545], the three-Judge Bench of this Court essentially considered the question on reference as to whether it is mandatory for a counterclaim of the defendant to be filed along with the written statement. While answering this question, this Court underscored the basic principles that procedural law should not be construed in such a way that it would leave the court helpless; and that a wide discretion had been given to the civil court regarding the procedural elements of a suit. Having said so, this Court observed that a counterclaim is designed to avoid multiplicity of proceedings; that time limit for filing a counterclaim is not explicitly provided for but there is limitation as to the accrual of the cause of action. However, the majority opinion has been that the defendant cannot be permitted to file counterclaim after the issues are framed and the suit has proceeded substantially. It was observed and held in the lead judgment, inter alia, as under: (SCC pp. 406-408, paras 18 & 21)

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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 6-A in Order 8 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 filing of the counterclaim, the provision itself becomes redundant 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 hyper-technical 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 counterclaim, 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

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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 CPC.

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21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim 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, which is pegged till the issues are framed. The courts 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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31. In the partly dissenting and partly concurring judgment, one of the Hon’ble Judges of the Bench stated his opinion that though the normal rule is that subsequent to filing of written statement, counterclaim cannot be filed after issues have been framed, under exceptional circumstances, counterclaim may be permitted to be filed even after issues have been framed, but before commencement of recording of plaintiff’s evidence. The Hon’ble Judge observed, inter alia, as follows: (Ashok Kumar Kalra case

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[Ashok Kumar Kalra v. Surendra Agnihotri, (2020) 2 SCC 394 : (2020) 1 SCC (Civ) 545], SCC pp. 410, 412 & 417-18, paras 31, 38, 56 & 60)

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"31. From the foregoing discussion, it is clear that a counterclaim can be filed if two conditions are met: first, its cause of action complies with Order 8 Rule 6-A(1); and second, it is filed within the period specified under the Limitation Act. Clearly, by itself, Rule 6-A does not specifically require that a counterclaim has to be filed along with the written statement. In the absence of a particular mandate under this Rule, it is necessary to look to other provisions of CPC to determine whether a counterclaim can be filed after a written statement.

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38. A conjoint and harmonious reading of Rules 6-A, 9 and 10 of Order 8 as well as Order 6 Rule 17 CPC thus reveals that the court is vested with the discretion to allow the filing of a counterclaim even after the filing of the written statement, as long as the same is within the limitation prescribed under the Limitation Act, 1963. In this regard, I agree with the propositions laid down in the decisions discussed below.

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56. The above discussion lends support to the conclusion that even though Rule 6-A permits the filing of a counterclaim after the written statement, the court has the discretion to refuse such filing if it is done at a highly belated stage. However, in my considered opinion, to ensure speedy disposal of suits, propriety requires that such discretion should only be exercised till the framing of issues for trial. Allowing counterclaims beyond this stage would not only prolong the trial, but also prejudice the rights that may get vested with the plaintiff over the course of time.

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60.... I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the

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framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counterclaim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff."

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32. In a conspectus of the aforesaid and while proceeding on the fundamental principles that the rules of procedure are intended to subserve the cause of justice rather than to punish the parties in conduct of their case, we are clearly of the view that the counterclaim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement.

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33. Indisputably, the counterclaim was filed on 7-9-2018 and until that date, issues had not been framed in the suit. In fact, the issues were framed only on 5-12-2018 [Bakul Maganlal Vyas v. Babubhai, 2018 SCC OnLine Bom 19944], the very date on which the learned Single Judge in the first round of these proceedings took the counterclaim off the record for no permission/leave having been sought for its presentation. In appeal against the order dated 5-12-2018 [Bakul Maganlal Vyas v. Babubhai, 2018 SCC OnLine Bom 19944], the Division Bench permitted filing of the requisite application seeking permission to file the counterclaim, while taking note of the submissions of the respondent-plaintiffs that they will not raise an objection to such application on the ground that the issues had already been framed and documentary evidence had been presented; and the Division Bench expected the learned Single Judge to deal with such an application on its own merits.

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34. Pursuant to the liberty so granted by the Division Bench, the appellant moved the application seeking permission to place the counterclaim on record and in support thereof, filed a detailed affidavit stating specific reasons for which the counterclaim was sought to be filed, including that of avoiding the multiplicity of proceedings. The appellant also pointed out the fact that he was earlier engaged in the dispute concerning succession to the property, which came to be settled in his favour only in the year 2017.

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35. The learned Single Judge, while passing the order dated 2-5-2019 [Bakul Maganlal Vyas v. Mahesh Govindji Trivedi, 2019 SCC OnLine Bom

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13200], did not elaborate much on the other aspects but pointed out the reason for accepting the prayer of the appellant that it would avoid multiplicity of proceedings; and in all fairness to the respondent-plaintiffs, kept all their defences, including as to limitation, specifically open. The said order dated 2-5-2019 [Bakul Maganlal Vyas v. Mahesh Govindji Trivedi, 2019 SCC OnLine Bom 13200], even if passed by the learned Single Judge on the very first day of consideration of the application moved by the appellant, had been a just and proper order which was conducive to the proper progression of the proceedings while avoiding multiplicity of litigation. There was no justified reason for the Division Bench to have interfered with the order so passed by the learned Single Judge.

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36. In the totality of the facts and circumstances of the present case, we are clearly of the view that neither the requirements of Order 8 Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciated and explained in Ashok Kumar Kalra [Ashok Kumar Kalra v. Surendra Agnihotri, (2020) 2 SCC 394 : (2020) 1 SCC (Civ) 545] operate as a bar over the prayer of the appellant for taking the belatedly filed counterclaim on record, which was indeed filed before framing of issues.”

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7. From the impugned order dated 06-04-2024 the learned trial Court itself observed that the issues have not been framed in the case and it is not disputed by the respondents also that the issues have not been framed till date. As has been held by the Hon’ble Supreme Court in the case of Mahesh Govindji Trivedi (supra), there is no restriction of filing of counter claim even after filing of the written statement, but before the framing of issues which is exactly the position here that before framing of the issues the defendant No.3 filed his counter claim by way of amendment application in his written statement and thus, the issue involved in the present case has already been answered in the aforesaid case of Mahesh Govindji Trivedi (supra).

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8. In view of the facts and circumstances of the present case and also the consideration of the Hon’ble Supreme Court in case of Mahesh Govind Trivedi (supra) the impugned order passed by the learned trial Court is not liable to be sustained. Accordingly, the order dated 06-04-2024 passed by the learned trial

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Court is set aside and the application filed by the petitioner/defendant No.3 under Order 6 Rule 17 of the CPC dated 26-06-2023 for incorporating the counter claim in his written statement is allowed and he is permitted to carry out the necessary amendment in his written statement.

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9. The plaintiff as well as other defendants are also at liberty to amend their respective pleading or file written statement of the counter claim filed by the defendant No.3 by way of consequential amendment or to file their written statement of the counter claim of defendant No. 3 in accordance with law.

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10. Accordingly, the writ petition is allowed .

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11. The interim order dated 08-05-2024 stands vacated.

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Aadil

Pankajmani v. Prafull Kumar

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Pankajmani v. Prafull Kumar

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