Sunday, 31 March 2019

Whether amendment of counter claim based on cause of action arising subsequent to filing of written statement is permissible?

A bare reading of the aforesaid provision makes it pellucid that a counterclaim can indeed be filed by a defendant on a cause of action which may have arisen before or subsequent to the filing of a suit. Yet it should be one obtaining before delivering the defendant's defence at the time of filing of the written statement. I am of the considered view that even though a counterclaim is to be tried a suit, yet its laying has statutory limitations. A counterclaim can only be based on i.e. cause's of action which obtain and exist at the time of filing of the written statement. Subsequent to the filing of the written statement any further fresh cause of action by the defendant against the plaintiff cannot be included in the counterclaim by way of an amendment. For that the defendant has the remedy of laying a separate suit. 

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Writ Petition No. 12286 of 2016

Decided On: 23.10.2018

Aakar-Prakar Laxman Path Vs. Madhuban Dairies

Hon'ble Judges/Coram:
Alok Sharma, J.

Citation: AIR 2019 Raj 42

1. Heard the counsel for the petitioner-defendant (hereafter 'defendant') and perused the impugned order dated 2.4.2016 passed by the Additional District Judge No. 11, Jaipur Metropolitan, Jaipur dismissing the defendant's application for amendment of the counterclaim filed along with the written statement.

2. Admittedly the eviction suit was filed in the year 2002. Written statement thereto as also the counterclaim seeking to restrain the plaintiff from interfering with the defendant's possession and enjoyment of the suit property, was filed on 23.7.2003. Issues were struck on the pleadings of the parties both in the eviction petition and in the written statement. The evidence of the plaintiff was commenced and oddly as is not unusual in cases coming up before this Court, continued for over a decade. At the stage of the plaintiff's evidence, the tenanted property apparently were attached and sealed by the Jaipur Municipal Corporation on account of alleged outstanding dues towards Urban Development Tax. As the attachment and sealing of the tenanted premises worked to the defendant's detriment, he states to have perforce paid the Urban Development Tax--the landlord's liability to an extent of Rs. 4,84,319/- on or about 11.2.2016. The tenanted property was desealed and the tenant continued her business of manufacturing wooden furniture therefrom as earlier conducted. But having paid the amount of Rs. 4,84,319/- odd to the plaintiff landlord's account, the defendant sought an amendment of her counterclaim accordingly seeking to add thereto the relief of recovery of the amounts paid on behalf of the plaintiff landlord towards his liability for Urban Development Tax. To that end, the defendant's application under Order 6 Rule 17 CPC for amendment of the counterclaim as moved before the trial court has been dismissed vide the impugned order dated 2.4.2016. Hence this petition.

3. Mr. Manish Sharma, counsel for the defendant submitted that the impugned order is reflective of a complete non application of mind as also misdirection of the trial court. He submitted that a counterclaim being in the nature of a suit, all processes as applicable to a suit including for amendment for reasons of subsequent events attract. Mr. Manish Sharma submitted that the trial court just plainly conjured up the non-existent fact of having earlier considered a 'similar' application for amendment of the counterclaim and rejected it and perversely held that the application under Order 6 Rule 17 CPC filed by the defendant for amendment of the counterclaim therefore deserved dismissal too. Mr. Manish Sharma pointed out that the alleged earlier "similar application" was not specifically adverted to as it in fact it could not be neither filed nor rejected as it was. Hence rejection of the application for amendment of the counterclaim seeking to add recovery of Rs. 4,84,319/- was absolutely unwarranted and entails manifest injustice. He submitted that the application for amendment of the counterclaim was necessitated for reason of payment of Urban Development Tax on behalf of the plaintiff without which the defendant tenant could not enjoy the tenanted premises as was her right. A fresh cause of action in this regard arose only on or about 11.2.2016 when the payment of Urban Development Tax was made by the defendant and the application for amendment was filed without inordinate delay.

4. Mr. Ravi Bhojak, counsel for the plaintiff submitted that the amendment of the counterclaim on a cause of action arising subsequent to the filing of written statement in a suit was not at all maintainable on the plain language of Order 8 Rule 6A CPC. It was submitted that no doubt a counter-claim when warranted can be filed along with written statement even if it is wholly unrelated to the cause of action on which the plaintiff's suit was laid. Mr. Ravi Bhojak submitted that the conditions for filing of a counterclaim are statutorily stated and prescribed and thereunder a counter claim can be set up only on cause of action's obtaining before the written statement is filed. A cause of action arising for the defendant against the plaintiff subsequent to the filing of written statement cannot be validly included by way of an amendment of the counterclaim. Mr. Ravi Bhojak further submitted that even otherwise Order 8 Rule 6A CPC is an enabling provision and does not confer any absolute and unfettered right to a defendant to even lay a counterclaim what amend it subsequent to filing of the written statement. He submitted that Order 8 Rule 6C CPC also confers a discretion on the trial court to require that instead of entertaining a counterclaim the cause of action agitated therein by the defendant against the plaintiff be pursued by way of a separate suit. Mr. Ravi Bhojak submitted that in the instant case the trial of the plaintiff's suit for eviction and the counterclaim of the defendant is well underway and the plaintiff's evidence is being recorded. There was no occasion for the trial court also for this reason to exercise its discretion and allow amendment of the counterclaim entailing a fresh start to the trial of the eviction suit of 2002. He further submitted that even otherwise the jurisdiction of this Court under Article 227 of the Constitution of India is discretionary in nature and is not to be invoked as per the law settled by the Apex Court unless manifest injustice is caused to a party from an order of the trial court. And no such injustice to the defendant from rejection of his application to amend the counterclaim in the facts of the case can be made out. The defendant can lay a suit for recover of Rs. 4,84,319/- and interest paid as Urban Development Tax to the plaintiff's account. Mr. Ravi Bhojak submitted that allowing the amendment to the counter-claim contrary to the plain language of Order 8 Rule 6A CPC subsequent to the filing of the counterclaim on 23.7.2003 on a cause of action which subsequently arose on 11.2.2016, would instead work grave injustice to the plaintiff.

Heard. Considered.

Order 8 Rule 6A CPC reads as under:-

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 (emphasis mine), 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.

(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.

(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.

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

5. A bare reading of the aforesaid provision makes it pellucid that a counterclaim can indeed be filed by a defendant on a cause of action which may have arisen before or subsequent to the filing of a suit. Yet it should be one obtaining before delivering the defendant's defence at the time of filing of the written statement. I am of the considered view that even though a counterclaim is to be tried a suit, yet its laying has statutory limitations. A counterclaim can only be based on i.e. cause's of action which obtain and exist at the time of filing of the written statement. Subsequent to the filing of the written statement any further fresh cause of action by the defendant against the plaintiff cannot be included in the counterclaim by way of an amendment. For that the defendant has the remedy of laying a separate suit. Besides as rightly argued, by Mr. Ravi Bhojak the power of the trial court both under Order 6 Rule 17 CPC and under Order 8 Rule 6A CPC to entertain a counterclaim is discretionary. This qua Order 8 Rule 6C CPC is evident from the language of Order 8 Rule 6C CPC. It is equally well settled that the discretion of the trial court is not to be interfered with unless it is exercised perversely is capricious or patently illegal. No such situation obtains and no such ground is made out in this petition.

6. Besides, since the 1999 amendment of Section 115 CPC, effective 01.07.2002, the jurisdiction of this Court to interfere with interlocutory/discretionary orders of trial courts in the process of adjudication of civil suits has been excluded except where the civil court's order would otherwise have had effect of the suit itself being disposed of. Resort to Article 227 of the Constitution of India as held in Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Ors. [MANU/SC/0335/2003 : (2003) 6 SCC 659] for interference with interlocutory orders of civil courts is now permissible only in rare and extreme cases of manifest injustice flowing from the trial court's error of jurisdiction, capricious or perversity shocking the Court's conscious.

7. In the facts of the case no ground to exercise the Court's supervisory jurisdiction under Article 227 of the Constitution of India is made out, I am not inclined to interfere with the impugned order. Petition is accordingly dismissed.

8. The interim order dated 28.9.2016 stands vacated.

9. The trial in the plaintiff's suit is now stated to be at the stage of final arguments. The arguments be concluded expeditiously and in any event within two months from the next date fixed before the Trial Court for the reasons that underlying eviction suit relates to the year 2002.


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