K.A Swami, J.:—
This Civil Revision Petition is preferred against the order dated 5th June 1989 passed by the X Additional City Civil Judge, Bangalore in O.S No. 1877/1980 directing that the counter claim made by the first defendant on 27-8-1986 be excluded from the suit with a liberty to the first defendant to pursue the counterclaim if she is willing, by means of an independent suit.
2. O.S No. 1377/1980 is filed by the respondents for recovery of possession of the suit property bearing Old No. 19, later No. 23, 70 and 59 and the present No. 52 situated at Poorna Venkata Rao Road, Bangalore City on the ground that the first defendant failed to perform her part of the Agreement of Sale dated 21-10-1965 and she is not entitled to remain in possession of the suit property as she was put in possession of the first floor pursuant to the Agreement of Sale and the ground floor is occupied by the first defendant unauthorisedly. The plaintiffs have also prayed for future mesne profits.
3. Sri Ramabhadriah Setty who was the original owner of the suit property, agreed to sell the first floor of the suit property in favour of the first defendant. The plaintiffs claim the property under the Will dated 2-6-1969. The suit was filed on 15-10-1977. The second defendant is one of the daughters of Sri Ramabhadriah Setty but does not have any interest in the suit property and she remained exparte throughout the proceedings. The written statement was filed by the first defendant on 10-7-1978. In the written statement the first defendant accepted the agreement pleaded by the plaintiffs and also further stated that she was ready and willing to perform her part of the Agreement and therefore the Court may be pleased to direct the legal representatives of Ramabhadriah Setty to execute the Sale deed and register the same. Thereafter on 16-11-1978 issues were framed. The plaintiffs commenced adducing evidence on 16-3-1983 and closed their evidence on 5-6-1985. On 26-8-1985 the first defendant commenced her side and closed her side on 14-10-1985. Thereafter, when the suit was posted for arguments on 21-11-1985 an application was filed by the first defendant under Order 6 Rule 17 C.P.C for amendment of the written statement. However, the Trial Court by its order dated 19-7-1986 treated that application as an application to set up counter-claim and permitted the first defendant to raise it as a counter-claim. That order was challenged before this Court in C.R.P No. 4503/1986 by the plaintiffs. This Court by the order dated 14th October 1988 allowed the Civil Revision Petition, set aside the order of the trial Court and disposed of the Revision Petition with the following observations:
“It appears that now the respondents have already filed a counter claim and the petitioners have also filed a reply, and the learned Counsel for the petitioners raised a question of maintainability of that counter-claim. But it is unnecessary to consider the same in this proceeding, as it is open to the petitioner to raise such a contention in the course of the trial.
The petition is allowed accordingly.”
After the aforesaid order the respondents filed an application to exclude the counter-claim from the suit. The trial Court has considered that application and has excluded the counter-claim from the suit by the order under Revision.
4. Having regard to the contentions urged by both the sides, following points arise for consideration:—
1. Whether the first defendant has set up any claim or right by way of counter-claim in the written statement filed on 10-7-1978?
2. If not, what is the time limit for filing the counter-claim?
3. Whether the order of the trial Court is justified in the facts and circumstances of the case?
4. Whether it is necessary in this C.R.P to go into the contention as to whether the counter-claim is barred by time?
5. Rules 6A to 6G relating to counter-claim came to be inserted by the Amendment Act 104/1976. Prior to that different states had their different amendments to the C.P.C The State of Karnataka also had introduced sub-rule (1) in Rule 6 of Order 8. Rules 6A to 6G read thus:
“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.
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 plaint and governed by the Rules applicable to plaints.
6B. Counter-claim to be stated: Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
6C. Exclusion of counter-claim: Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application, make such order as it thinks fit.
6D. Effect of discontinuance of suit:— If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with.
6E. Default of plaintiff to reply to counter-claim: If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce Judgment against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter-claim as it thinks fit.
6F. Relief to defendant where counterclaim succeeds:— Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give Judgment to the party entitled to such balance.
6G. Rules relating to written statement to apply:— The Rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.”
6. The Supreme Court in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala . AIR 1964 SC 11. considered the case of counter-claim before the insertion of Rules 6A to 6G of Order 8 of the C.P.C and held thus:
“The question has therefore to be considered on principle as to whether there is anything in law - statutory or otherwise - which precludes a Court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counter-claim which is to be treated as a cross-suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If for instance, what is really a plaint in a cross-suit is made part of a written statement either by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a case the Court was not prevented from separating the Written Statement proper from what was described as a counter-claim and treating the latter as a cross-suit. If so much is conceded it would then become merely a matter of degree as to whether the counter-claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter-claim as a plaint in a cross-suit. To hold otherwise would be to erect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Order VIII, Rule 6 or in any other provision of the Code which laid an embargo on a Court adopting such a course.”
Again in Mahendra Kumar v. State of Madhya Pradesh . 1987 3 SCC 265 it has been held that Rule 6A(1) does not, on the face of it, bar filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. Therefore the counter-claim filed after filing the written statement cannot be held to be not maintainable, if the cause of action for the counter-claim had arisen before filing or the last date fixed for filing the written statement. Thus, it is clear that the counter-claim can be filed even subsequent to the filing of the written statement provided it relates to the cause of action which had accrued prior to the filing of the suit or prior to the filing of the written statement or prior to the last date fixed for filing the written statement.
7. In the instant case the averments made in the written statement are sufficient enough to make out a counter-claim. The first defendant has given the details of the agreement of sale and has also averred that she has been ready and willing to perform her part of the contract and that she has further prayed for directing the legal representatives of Ramabhadraiah Setty to execute the sale deed and register the same. The cause of action for the counter-claim had arisen prior to the filing of the written statement. However, in spite of the plea raised by the first defendant, she did not pursue it to be registered properly as a counter-claim, on payment of requisite Court fee. The issues were framed on 16-11-1978. Evidence was adduced by both the sides. Evidence was closed on 14-10-1985. Before the issues were framed the first defendant was required to request the Court on payment of requisite Court fee to register the counter-claim. She did not do so. The parties went to the trial and adduced evidence. The first defendant requested only on 21-11-1985 to treat the claim set up in the written statement as a counter-claim. Therefore on the first point it is held that even though the first defendant had set up a counterclaim in her written statement, but she failed to pursue it till 21-11-1985. Point No. 1 is answered accordingly.
8. Point No. 2:— In both the decisions of the Supreme Court referred to above there is no indication as to when the counter-claim can be set up. Both the decisions are only to the effect that the counter claim must relate to the cause of action which had arisen before the filing of the suit or before the filing of the written statement or the last date fixed for filing the written statement. Therefore, it is necessary to determine as to what is the time limit for setting up a counter-claim. A reading of Rules 6A and 6G of Order 8 of the C.P Code makes it clear that the counter-claim has to be treated as a cross-suit and it has to be tried along with the original claim made in the suit. When the counter-claim has to be tried along with the original claim and all the Rules of pleading apply to a counterclaim and it becomes a plaint in the cross-suit and the plaintiff is entitled to file a written statement in answer to the counter-claim of the defendant, it necessarily follows that a counter-claim, if not set up in the written statement, it has to be set up before the issues are framed, at any rate, before recording of the evidence commences. If a counter-claim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit because at the time of adducing evidence, he will not be aware of the counter-claim, as it will not be on record. Therefore, he cannot be expected to, and he is not required to, adduce evidence having a bearing on the counter-claim. Further allowing the counter-claim to be set up after the evidence is recorded, would be doing nothing but ignoring Rules 6A to 6C of Order 8 of the C.P Code. It would also result in protracting the trial and would defeat the very object of treating the counter-claim as a cross-suit and trying the issues arising therefrom along with the issues arising in the suit. The object of this is to avoid delay not only in the trial of the suit but also to decide all the controversies arising between the parties to the suit before filing the written statement or before the last date fixed for filing the written statement inasmuch as by directing the counter-claim to be tried along with the main suit, the controversies or the disputes between the parties can be settled in one proceeding. Therefore, even though the Rules do not specifically lay down that a counter-claim should be filed within a particular date but, reading of Rules 6A and 6G together would make it clear that the counter-claim cannot be permitted to be filed when once recording of evidence commences. Point No. 2 is answered accordingly.
9. Point Nos. 3 and 4:— In the instant case, it is already noticed that written statement does contain the counter-claim. Of course, the first defendant has not paid the Court fee and has not requested the Court to register it as a counter-claim. Counter-claim is a plaint in a cross suit. Therefore, if a counter-claim is set up in ‘the written statement and no Court fee is paid, it is as good as filing a plaint without a Court fee. Section 8 of the Karnataka Court Fees and Suit Valuation Act, 1958 provides that written statement pleading a set-off or a counter-claim shall be chargeable with fee in the same manner as a plaint. As per Order 7 Rule 11(c) of the Code of Civil Procedure where the plaint is written upon paper insufficiently stamped the Court is required to fix a time for payment of the Court fee and if the Court fee is not paid within the time fixed, it is open to the Court to reject the plaint. The provisions of Order 7 Rule 11 are attracted to a counter-claim. Therefore, the Court has to determine as to whether the Court fee paid is sufficient or not. If the Court fee paid is found to be insufficient, the Court has to fix a date for payment of Court fee. Even then the defendant who has set up a counter-claim in the written statement or by preferring a separate counter-claim fails to pay requisite Court fee, it would be open to the Court to reject the counter-claim. It is open to the defendant to set up a counter-claim in the written statement or make a separate application for raising a counter-claim. In the instant case, in the written statement the first defendant has set up a counter-claim but has not paid the Court fee required to be paid on it. The Court also has failed to fix a date for payment of Court fee. Even after fixing a date for payment of Court fee, the first defendant has failed to pay the Court fee it would have been open to the Court to reject the counter-claim. Even though the petitioner can be blamed for not paying the requisite Court fee and not requesting the Court to register it but the Court is also at fault. It ought to have fixed a date for payment of requisite Court fee. In such a situation the Court is expected to do Justice and decide the controversies between the parties. If only the Court would have been careful and fixed the bate for payment of the Court fee the problem that has now arisen in the instant case would not have arisen at all and the question of filing an application either for amendment of the written statement or for permission to raise a counter-claim would not have arisen at all. In this view of the matter, the contention of the plaintiff that the counter-claim itself is barred by time as it is raised on 21-11-1985 cannot be entertained as the counter-claim is set up in the written statement itself. Whether on the date of filing the written statement the counter-claim was barred by time or not is a matter which has to be decided by the trial Court. In Laxmidas' case, the counter-claim was set up in the written statement. However, it was tried to be explained by way of an amendment application. At that stage, the plaintiff pleaded that it was barred by time, therefore, the amendment should be rejected. The Supreme Court held that a counter-claim can be set up in the written statement and there was no law which prohibited it, that the amendment was only explanatory therefore the question of limitation did not arise. In the instant case as already pointed out the written statement does contain a counter-claim. The first defendant has now paid the Court fee and the counter-claim has also been registered. Additional issues have also been raised. It has also been submitted on behalf of the first defendant before the trial Court that there is no evidence to be adduced on her behalf on the additional issues framed in respect of the counter-claim. In this Court also she has filed a Memo which reads thus:
“The petitioner submits, she has no further evidence in respect of the counter-claim made in O.S No. 1877/1980 except the evidence already available on record. Hence, the petitioner has no objection in disposing of O.S No. 1877 of 1980 on the file of the City Civil Judge at Bangalore by hearing the final arguments in the suit.”
In such a situation when the first defendant does not want to adduce any additional evidence even though the burden is upon the first defendant to prove that the counter-claim is in time; and that she has been ready and willing to perform her part of the contract, she takes the risk of proving the issues on the evidence already on record. However, it is strenuously urged by learned Counsel for the plaintiffs that the counterclaim on the face of it is barred by time and he has placed reliance on a decision of the High Court of Kerala in Pathrose Samual v. Karumban Parameswaran.3 No doubt if a plaint is barred by time whether a defence as to limitation is set up or not it can be rejected under Order 7 Rule 11 of the C.P.C But, in the instant case when the evidence has been recorded and the first defendant has no further evidence to adduce on the counter-claim and one of the issues framed in the counter-claim relates to the question as to whether the counter-claim is barred by time, it would not be just and appropriate to apply Order 7 Rule 11 of the C.P.C at this stage. The provisions of the Order 7 Rule 11 of the C.P.C can appropriately be applied only at the initial stage of the suit and not after the suit is tried. Therefore, it is not possible to apply the aforesaid decision of Kerala High Court. Therefore, I am of the view that the question of limitation need not be gone into in this Civil Revision Petition as it is open to the trial Court to decide the same.
10. It is also contended on behalf of the plaintiffs that this Court, by the order dated 14th October 1988 passed in C.R.P 4503/1986, has set aside the order of the trial Court by which the trial Court had permitted the petitioner to make a counter-claim, therefore, it is not open to the first defendant to insist that the counter-claim should also be considered along with the main suit. In the light of the findings recorded on Point No. 1 that the written statement itself sets up a counter-claim therefore, there is no necessity to file an application seeking amendment to the written statement to set up a counter-claim. In addition to this, this Court did not close the counter-claim. It left it open to be considered by the trial Court. This is clear from the operative portion of the Order which has already been reproduced in the earlier portion of this Order.
11. The trial Court has excluded the counter-claim on the ground that it has been filed on 27-8-1986. The reasoning of the trial Court cannot be accepted as correct having regard to the fact that the written statement itself sets up a counter-claim. Further the application filed for permitting the first defendant to raise the counter-claim does not contain any additional plea. It contains the plea that is contained in the written statement except seeking permission to raise it as a counter-claim. Therefore, it is only explanatory. It is rather intended to draw the attention of the Court to the counter-claim already set up in the written statement. The trial Court has excluded the counter-claim and has permitted the petitioner to pursue it by way of a separate suit. Rule 6C of Order 8 of the Code of Civil Procedure specifically provides as to when and at what stage counter-claim may be excluded. Rule 6C specifically provides that:
“Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.”
Therefore, before the issues are settled in relation to counter-claim the plaintiff can apply to the Court to exclude the counter-claim and permit the defendant to pursue the same by way of separate suit. Therefore, it is not the stage at which the counter-claim should have been excluded. The trial Court has placed reliance on a decision of the High Court of Patna in Jagdish Prasad Chowdhary v. Nirsu Singh.4 It is relevant to notice that in that case the Court has considered the only question as to whether the counter-claim could relate to the cause of action which arose before or after the filing of the suit and before the filing of the written statement and the Court has specifically held that the counter-claim should relate to the cause of action which arose either before the filing of the suit or before the filing of the written statement. In the instant case, it is not disputed and it cannot at all be disputed that the cause of action for the counter-claim had arisen even before the date of filing the suit because the cause of action is the agreement dated 21-10-1965. The trial Court has also placed reliance on a decision of the High Court of Orissa in Kashi Viswanath Dev v. Paramananda Routrai.5 In that case it has been held that Rule 6A of Order 8 of the C.P Code provides that the counter-claim should be filed at the time of filing the written statement or before the time limited for submission of the written statement has expired. In that decision it has not been noticed that the time limit mentioned in Rule 6A of Order 8 of the C.P Code relates to the cause of action on the basis of which the counter-claim can be made and it does not relate to limitation for filing the counter-claim. This decision is clearly opposed to the decision of the Supreme Court in Mahendra Kumar v. State of M.P in which it has been held thus:
“The next point that remains to be considered is whether Rule 6A(1) of Order VIII Civil P.C bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. The High Court in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1), Civil P.C As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable.”
Accordingly, Points 3 and 4 are answered in the negative.
12. For the reasons stated above, this Civil Revision Petition is allowed in the following terms:
(i) The order dated 5th June 1989 passed in O.S No. 1877/1980 is set aside. I.A No. 8 is rejected.
(ii) As the first defendant has filed a Memo that she has no further evidence to adduce the trial Court is now directed to decide the issues framed in the suit as well as in relation to the counter-claim on the basis of the evidence on record including the issue raised by the trial Court as to whether the counter-claim is barred by time.