In the case of Nagnath Jagannath Lomate (supra)
relied upon by the learned counsel for the petitioners, the
phrase “delivering defence” has been interpreted to mean that
the counter claim should be raised before or at the time of
presentation of the written statement.
Learned Single Judge of this Court, relying upon
the law laid down by the Apex Court in the case of Ramesh
Chand Ardawatiya Vs/ Anil Panjwani, AIR 2003 SC 2508, has
held in the said case of Nagnath Jagannath Lomate (supra)
that the 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 is set down for trial
and more so, when the trial has already commenced.
15.
It is thus clear that in respect of cause of action
which has arisen before or after filing of the suit, the counter
claim must be set up before or at the time of filing of the
written statement and it can be refused to be taken especially
when the trial of the suit has already commenced. Of course,
this would not be applicable to a counter claim in respect of
which cause of action has arisen after filing
of the written
statement.
IN THE HIGH COURT OF BOMBAY AT GOA.
WRIT PETITION NO. 529 OF 2013.
Shri. Inacio Amorim V. D’ Costa,
v/s
Shri. Rocky Andrade,
CORAM:-S. B. SHUKRE, J.
DATE:- 29th April, 2014.
Citation; 2015(1) MHLJ 206
The only point which arises for consideration in
this case is:-
Whether the
impugned order dated 16.2.2013
allowing counter claim of respondent no.1 passed
by learned Civil Judge, Senior Division, Ponda is
illegal and arbitrary?
5.
The facts leading to the presentation of the present
petition are stated in brief as under:-
The petitioners are the plaintiffs who had filed a
suit against respondent no.1 and 2 for specific performance of
the agreement dated 14.08.1996 and for damages. Plaint was
presented in the month of August, 2007.
It was resisted by
respondent no.1 who filed his written statement dated
1.4.2008.
The
dispute
between
the
petitioners
and
respondent no.1 revolves around the delivery of second flat, S-
2, as a part consideration of the agreement for sale of the suit
plot executed between the petitioners and respondent no.1.
This flat was having an area of 75
sq. mts and after
construction of the building, it was revealed that this flat was
having an area of 94 sq. mts and not of 75 sq. mts. Therefore,
respondent no.1 requested the petitioners to pay up for the
difference amount of the cost of this flat, which was of
Rs.81,000/-. First flat that was to be delivered
to the
petitioners as part consideration was also having an area of 94
sq. mts instead of agreed area of 75 sq. mts and according to
respondent no.1, it was delivered and at that time the
petitioners had borne the difference amount of the price of the
said flat. All these facts were incorporated by respondent no.1
in his written statement.
6.
During the pendency of the suit, plaintiff no.1 died.
In the written statement that was filed by respondent no.1 , no
counter claim in respect of the claim of Rs. 81,000/-
raised by
respondent no.1 upon the plaintiffs or the petitioners was
made. There was also a new development after the death of
original plaintiff no.1 which required respondent no.1 to raise
another claim in the nature of mandatory injunction directing
the petitioners to execute their power of attorney in his favour
for the purpose of carrying out remaining works of the
building.
7.
In view of the subsequent development and also
need felt for setting up of a counter-claim specifically, the
respondent no.1 filed an application under Order 8 Rule 6A of
CPC for raising the counter claim in respect of mandatory
injunction directing the petitioners to execute power of
attorney in his favour and seeking damages to Rs.81,000/- as
well as compensation of Rs. 60,000/- from the petitioners.
9.
After hearing both sides, learned Civil Judge
allowed the application on the ground that cause of action had
accrued to respondent no.1 against the petitioners after filing
of the suit by his order passed on 16.2.2013. It is this order
which has been challenged for the present petition.
10.
So far as the counter claim as regards mandatory
injunction is concerned, the petitioners have not raised any
objection to the same.
Their objection is with regard to
counter claim (b) which relates to the claim of damages in the
sum of Rs.81,000/- and compensation of Rs. 60,000/- raised
upon the petitioners/plaintiffs.
According to the learned
counsel for the petitioners provision of Rule 6A Order 8 CPC is
very clear and it enjoins upon the defendant to set up a
counter claim in respect of
before or after
cause of action accruing to him
filing of the suit, but before the written
statement has been filed. He submits that in the instant case,
cause of action had arisen well before filing of the written
statement and it was very well known to respondent no.1 when
he filed the written statement.
Therefore, the application
could not have been granted by the learned Civil Judge.
In
support of his submission he places his reliance upon the case
of Nagnath Jagannath Lomate and Anr. Vs. Narsing Sambha
More and ors, AIR 2009 Bombay 133.
11.
Learned counsel for respondent no.1 submits that
there were several reasons why respondent no.1 could not
make a counter claim against the plaintiffs at the time when
written statement was filed. He submits that since respondent
no.1 issued notices and had also requested the petitioners or
the plaintiffs to pay up the difference price, he thought it
appropriate to wait for a positive reply from the petitioners or
the plaintiffs.
When no such response was received by
respondent no.1 from the petitioners, he thought it fit to raise
the counter claim in respect of damages of Rs. 81,000/- and
also compensation of Rs. 60,000/-.
He further submits that
there was also an agreement subsequently entered between
the petitioners and respondent no.1 whereby the petitioners
had agreed to pay up the difference price and, therefore, for
deciding the real controversy involved between the parties, the
counter claim has been rightly allowed to be raised by the trial
Court.
12.
Provision of Rule 6A
Order 8 CPC
is clear and
leaves no ambiguity in one's mind as to the manner in which
the counter claim can be raised and the time when it can be so
raised by the defendants.
Under this provision, a defendant
can set up a counter claim against the plaintiff in respect of
cause of action accruing to him before or after filing of the suit
but before the defendant has delivered his defence or before
the time limited for delivering his defence has expired.
13.
In the case of Nagnath Jagannath Lomate (supra)
relied upon by the learned counsel for the petitioners, the
phrase “delivering defence” has been interpreted to mean that
the counter claim should be raised before or at the time of
presentation of the written statement.
14.
Learned Single Judge of this Court, relying upon
the law laid down by the Apex Court in the case of Ramesh
Chand Ardawatiya Vs/ Anil Panjwani, AIR 2003 SC 2508, has
held in the said case of Nagnath Jagannath Lomate (supra)
that the 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 is set down for trial
and more so, when the trial has already commenced.
15.
It is thus clear that in respect of cause of action
which has arisen before or after filing of the suit, the counter
claim must be set up before or at the time of filing of the
written statement and it can be refused to be taken especially
when the trial of the suit has already commenced. Of course,
this would not be applicable to a counter claim in respect of
which cause of action has arisen after filing
of the written
statement.
16.
In the instant case, it is seen from the averments
made in the written statement itself, which are contained in
paragraphs 4, 8 and 14, that the cause of action had already
arisen when the written statement was filed. Since it was not
taken up at that time, in view of the settled position of law
discussed earlier, the counter claim in respect of a right to
claim damages and compensation from the petitioners could
not
have
been
allowed
at
the
belated
commencement of the trial in the suit.
stage
after
The impugned order,
in so far as it relates to allowing of the application for raising
-- 10 --
of the counter claim (b) relating to damages
and counter
claim, is absolutely illegal and against settled provisions of law.
Such an order cannot be sustained in law and it deserves to be
quashed and set aside. The point is answered accordingly.
17.
In the result, the Writ Petition is allowed and the
impugned order is quashed and set aside only to the extent it
allows
the
counter
compensation.
claim(b)
relating
to
damages
Rule is made absolute in these terms.
Petition stands disposed of.
S. B. SHUKRE, J.
vn*
and
Writ
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