Tuesday 7 July 2015

When counter claim can be filed subsequent to filing of written statement?

 The time or the period prescribed in the provision relates to accrual
of cause of action for the counterclaim.
It has nothing to do with the
timing for raising the counterclaim.
It provides that the cause of action
for counterclaim
must have accrued either prior to filing of the suit or
after filing of the suit, but before either delivery of defence or expiry of
time for delivery of defence by the defendant. Where cause of action to
file counterclaim
has so arisen, the counterclaim
can be filed even
subsequent to filing of the written statement. Order VIII, Rule 6A
does
not bar filing of counterclaim
even after filing a written statement. It is
well established that a counterclaim
is in effect a crosssuit
and is
required to be decided in the same manner as a suit. It is therefore
undoubtedly subject to a period of limitation. The period of limitation for

it is prescribed not under Order VIII, Rule 6A
Code of Civil Procedure,
but under Article 113 of the Limitation Act, 1963. Since there is no
period of limitation specifically provided for filing counterclaim
in the
schedule to the Limitation Act, it would be governed by the residuary
clause at Article 113. The period provided under Article 113 is of three
years from the date of accrual of the cause of action.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8486 OF 2011
Kimberley Pereira ....Petitioner
: V/S. :
Mario Pereira ....Respondent

CORAM :SMT.
R.P. SONDURBALDOTA, J.
8 DECEMBER, 2011.
Citation;2012(2) MHLJ101

Rule. Rule made returnable forthwith. By consent of the parties,
the petition is taken up for hearing immediately.
2. The order of the Family Court impugned in this writ petition rejects
the application of the petitionerwife
to amend her written statement for
including counterclaim
therein. The application had been filed more
than two years after filing of the written statement. The respondenthusband
had opposed it on the grounds of i) delay, ii) it being barred by
0rder 8, Rule 6A Code of Civil Procedure and iii) it being unnecessary for
the purpose of determining the real controversy between the parties. The

Family Court rejected the application holding that it was not made
within time and that it gave rise to a new cause of action. The Court was
of the opinion that serious prejudice would be caused to the respondenthusband
if the proposed amendments were allowed.
3. The parties profess Christian religion. The respondent has filed
petition for divorce under Section 10(1)(ix) and (x) of the Indian Divorce
Act. The petitioner filed her written statement on 21st December, 2006.
Thereafter, on 8th April, 2009 she filed the application at Exhibit21
for
amendment of the written statement to include counter claim therein.
By way of counterclaim,
she proposed to seek divorce under the same
grounds i.e. the grounds provided under Section 10(1) (ix) and (x) of the
Indian Divorce Act and for possession of the flat standing in her name.
She also seeks an injunction to restrain the respondenthusband
from
creating third party interest in the flat in question.
4. The petitioner is an employee of the Indian Airlines and as such is a
member of Sea View Cooperative
Housing Society Limited, Malwani,
Marve Road, Malad (West) formed by the employees of Indian Airlines in
respect of Flat No.1 on the ground floor of the society building. She
contended in her application that during the counseling session in the
Family Court, she learnt that the respondent has started residing in the
flat at Malad without her knowledge and consent. When her repeated
requests to him to vacate the flat fell on deaf ears, she apprehended that

he may dispose off the flat to cause irreparable loss to her. She therefore
sought to file counterclaim
seeking direction to him to vacate the flat at
Malad and also for a permanent injunction to restrain him from creating
any third party rights over the same.
5. Mr. Lalwani, the learned counsel for the petitioner submits that the
impugned order is not only harsh and unreasonable, but also contrary to
well settled principles with regard to amendment of pleadings. He
submits that since the Family Court has jurisdiction to decide the
disputes relating to the properties of the parties to the marriage or either
of them, rejection of the application would lead to multiplicity of the
proceedings as the petitioner would be required to file a separate
proceeding to claim the said reliefs.
6. Per contra, Mr. Fernandes, the learned counsel for the respondent,
at the outset, objects to the maintainability of the petition, submitting
that no writ petition can be filed under Article 227 of the Constitution of
India. According to him the present petition termed as “writ petition”
filed under Article 227 of the Constitution of India, is not maintainable.
To support his submission, Mr. Fernandes relies upon unreported
decision of the Apex Court dated 23rd July, 2010 in Civil Appeal No. 5896
of 2010, Shalini Shyam Shetty & another V/s. Rajendra Shankar Patil.
Perusal of the present petition and the decision cited by Mr. Ferandes will
show that there can be no substance in the objection to the

maintainability of the petition and the reliance upon the decision cited is
misplaced. A brief reference to the facts of the proceedings before the
Apex Court will be required for appreciating the argument advanced.
The appellant before the Apex Court was the original defendant in the
suit for eviction filed by the respondentlandlord
on the ground of breach
of terms of tenancy, causing damage to the property, and causing
nuisance and annoyance to the landlord and other occupants. The Small
Causes Court, Mumbai decreed the suit directing the appellant to hand
over vacant and peaceful possession of the demised premises to the
landlord. An appeal was preferred against this order. The first appellate
Cort vide its order, partly allowed the appeal. It confirmed the trial
Court’s judgment on the ground of causing waste and damage as
contemplated under Section 16(1)(a) of the Maharashtra Rent Control
Act, but, set aside the findings of the trial Court on the grounds of
nuisance and annoyance. The appellant then moved the High Court with
a prayer to issue a writ of certiorari and/or any other writ, order or
command and call for the papers and proceedings from the lower Courts.
The High Court dismissed the writ petition only on the ground that
against the concurrent finding of facts of the Courts below the exercise of
writ jurisdiction is not warranted. The Apex Court noted that the High
Court had not considered the question of maintainability of the petition
before it. It noticed that the petition filed before the High Court was a

pure and simple writ petition complete with all the features of a writ
petition. It sought writ of certiorari and contained relevant mandatory
averments in the petition. Since the dispute in the petition related to
pure dispute of landlord and tenant i.e. between the private parties, the
petition was held not maintainable.
7. The present petition does not contain any of the features of a “writ
petition”. It neither seeks any specific writ nor contains relevant
averments mandatory for a “writ petition”. It is only labled as a “writ
petition” in view of the provisions in Rule 2B, Chapater 1 of Bombay High
Court (Appellate Side) Rules 1960 and is in fact an application under
Article 227 Constitution of India.
8. Mr. Fernandes then relies upon the same decision for the scope of
interference by the High Court under Article 227 Constitution of India.
The observations relied upon read as follows :
(e) According to the ratio in Waryam Singh (supra),
followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and
Courts subordinate to it, ‘within the bounds of their
authority’.
(f) In order to ensure that law is followed by such
tribunals and Courts by exercising jurisdiction which
is vested in them and by not declining to exercise the
jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of tribunals and Courts
subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of
natural justice have been floated.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken
by the tribunals or Courts subordinate to it, is a
possible view. In other words, the jurisdiction has to
be very sparingly exercised.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power
can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it
transpires that the main object of this Article is to
keep strict administrative and judicial control by the
High Court on the administration of justice within its
territory.”
There can be no dispute about the above principles laid down for exercise
of it’s power of superintendence by the High Court. It is therefore only
required to be seen whether the facts of the present case are covered by
the above principles.

9. The impugned order notes the argument of the respondent that the
counterclaim
is barred by limitation but does not consider the same. It
instead holds that the application for amendments, is not within time.
The only discussion on this aspect which is at paragraph 3 of the order
reads as under:
“The respondent has stated that the flat was purchased in 1992
and she learnt during the counseling session of this petition
that the petitioner is residing in the said flat though the flat
stands in her name. If it was the case, the respondent should
have immediately filed the amendment application. In my
opinion, the proposed amendment is very much belate. (sic) I
am well aware that there are catena of judicial decisions that
amendment can be allowed at any stage. However, it must be
shown that the proposed amendment is made without
inordinate delay...”
Unfortunately the order is seen to contain no reasons for holding that the
application for the proposed amendment is not made within time. The
order does not even mention what was the time within which the
application for amendment ought to have been filed. It does not state
what would be the prejudice caused to the respondent by the delay in
filing the application and by the amendments proposed.
10. Mr. Fernandes, seeks to justify the observations of the Family Court
by submitting that the counterclaim
is barred by Order VIII, Rule 6A,
Code of Civil Procedure. The submission is unacceptable since the

provision does not provide for limitation for filing counterclaim.
The
relevant part of the provision of Order VIII, Rule 6A
reads as follows :
“6A.
Counterclaim
by defendant.(
1) A defendant in a suit
may, in addition to his right of pleading a setoff
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”
11. The time or the period prescribed in the provision relates to accrual
of cause of action for the counterclaim.
It has nothing to do with the
timing for raising the counterclaim.
It provides that the cause of action
for counterclaim
must have accrued either prior to filing of the suit or
after filing of the suit, but before either delivery of defence or expiry of
time for delivery of defence by the defendant. Where cause of action to
file counterclaim
has so arisen, the counterclaim
can be filed even
subsequent to filing of the written statement. Order VIII, Rule 6A
does
not bar filing of counterclaim
even after filing a written statement. It is
well established that a counterclaim
is in effect a crosssuit
and is
required to be decided in the same manner as a suit. It is therefore
undoubtedly subject to a period of limitation. The period of limitation for

it is prescribed not under Order VIII, Rule 6A
Code of Civil Procedure,
but under Article 113 of the Limitation Act, 1963. Since there is no
period of limitation specifically provided for filing counterclaim
in the
schedule to the Limitation Act, it would be governed by the residuary
clause at Article 113. The period provided under Article 113 is of three
years from the date of accrual of the cause of action.
12. The petitioner filed her written statement on 21st December 2006. A
month prior to that i.e. on 21st November 2006 she had filed an
application for interim relief seeking direction to respondent to vacate the
flat in question and to prevent him from creating third party rights over
the flat. A copy of that application is produced before this court by the
respondent. In that application also at paragraph 9, the petitioner has
claimed that she learnt about the occupation of the flat by the respondent
during the counselling session in the court. This would mean that the
cause of action had accrued to the petitioner within the period provided
in Order VIII, Rule 6A
Code of Civil Procedure. She can file counterclaim
at anytime within three years from the date of knowledge. Since the
date of knowledge would be a matter of evidence, the Family Court ought
to have allowed the application and considered the question of limitation
to file counterclaim
at trial by framing an issue therefor. The counterclaim
being in the nature of crosssuit,
it could have been filed even on
the last date of limitation. The application to file it could not have been

dismissed on the ground of delay. Such dismissal is gross and manifest
failure of justice.
13. The Family Court has also observed that serious prejudice will
occur to the respondent if proposed amendment is allowed and the
amendment gives rise to a new case. The Family Court lost sight of the
fact that the amendment of the written statement sought was only to
include the counterclaim
therein. For entertaining a counterclaim,
question of the same giving rise to a new case does not arise. Similarly
no question of any prejudice being caused to the respondent will arise.
Mr. Lalwani submits that in any case amendment of pleadings can never
cause prejudice or irreparable injury to any party. In support, he relies
upon following observations of the Apex Court in it’s decision in Prem
Bakshi vs. Dharam Dev, reported in A.I.R. 2002, Supreme Court 559.
“6. Now the question is whether the order in question has
caused failure of justice or irreparable injury to respondent
no.1. It is almost inconceivable how mere amendments of
pleadings could possibly cause failure of justice or irreparable
injury to any party. Perhaps the converse is possible i.e.
refusal to permit the amendment sought for could in certain
situations result in miscarriage of justice. After all
amendments of the pleadings would not amount to decisions
on the issue involved. They only would serve advance notice to
the other side as to the plea, which a party might take up.
Hence, we cannot envisage a situation where amendment of
pleadings, whatever be the nature of such amendment would
even remotely cause failure of justice or irreparable injury to

any party.”
14. The impugned order amounts to grave miscarriage of justice and
cannot be sustained. Hence, Rule is made absolute. The petition is
allowed in terms of prayer clause (a).
[SMT. R.P. SONDURBALDOTA, J]

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