Shivani v. Bherulal

permanent injunction against respondent/defendants nos.2 to 5 stating that one Shri Sewaji had a son named Rughnath who expired on 07.12.2011. The person Rughnath had two wives namely Nabibi (first wife) and after the death of Nabibai, his natra was done with Geetabai. Rughnath being the son of Sevaji got agricultural land of Village Hariyakheda Raka 9.975 Hectare with a house after the death of his father Sewaji. The Plaintiff/ respondent no.1 Bheruall claimed himself to be the son of Rughnath and first wife Nabibai. Respondent Nos.2 to 4 were stated to be children of Rughnath and Geetabai (second wife). As per the plaintiff/Bherulal, being son of Reghunath, he had 50% shares in the land of father Rughnath after the death of Rughnath. Therefore, the suit was filed.

4. Defendants nos.2 to 5 have filed their written statements before the learned trial Court and denied the plaint averments stating that Nabibai was not the first wife of Raghunath and plaintiff is not the son of Rughnath and therefore, he has not right in the suit property. On 28.06.2017, the appellants were added as defendants in the suit on the basis of an application filed for their impleadment as part of the said property was sold by defendant nos.1. to 4 to respondent no.2 to 5 during pendency of the suit by virtue of two sale deeds. After getting impleaded in the suit, the appellants have filed their written statements on 25.09.2017. Subsequently, on 16.02.2018, additional issued were framed. On 28.02.2018, i.e. 12 days later after framing the additional issues, appellants have filed an application under Order 8 Rule 6 of CPC alongwith the said application, they have also filed their counter claim for declaration and permanent injunction.

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5. Thereafter, on 26.03.2018, respondent no.1/plaintiff has filed an application under Order 7 Rule 11 of CPC stating that counter claim being filed belated, cannot be taken on record. The learned trial Court vide order dated 07.04.2018 has decided the application filed by the plaintiff under Order 7 Rule 11 of CPC and allowed the same and resultantly, refused to take the counter claim of the appellants on record holding that the counter claim has been filed belatedly.

6. Being aggrieved by the order dated 07.04.2018, the appellants have preferred an appeal before the first appellate Court, but the learned first appellate Court dismissed the appeal vide impugned order dated 15.12.2021. Hence, the present appeal has been filed on behalf of the appellant.

7. Vide order dated 11.01.2022, this appeal is on two substantial questions of law that whether the counter claim of defendants 6 to 9 having been filed on 28.02.2018 by stating the cause of action to have accrued for filing of the same on 03.07.2017 could have been held to be barred by time in view of the filing of the written statement by them on 25.09.2017 and whether the Courts below have committed an error of law in misinterpretation the provisions of Oder 8 Rule 6(a) of the CPC and by not taking into consideration the judgment of Hon'ble Apex Court in the matter of Mahendra Kumar and Another vs. State of M.P. and others AIR 1987 SC 1395?

8. Learned counsel for the appellants has submitted that the learned appellate Court has committed error of law in confirming the judgment of

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trial Court by refusing to take the counter claim of the appellant on record. It is further submitted that the impugned orders have been passed by the Courts below against the settled principles of law and dismissal of counter claim solely on the ground that the counter claim is filed belatedly, is not justified and not in accordance with law. The finding of learned trial Court that since the sale deeds of appellants have been executed during pendency of the suit, therefore, provisions of Section 52 of the Transfer of Property Act shall apply. It is submitted by counsel for the appellants that the defendants were impleaded in the suit on 28.06.2017 and they have filed their counter claim on 28.02.2018 i.e. within five months of filing of written statements. The appellants by way of counter claim have sought only declaration of title and permanent injunction in their favour according to the sale deeds executed in their favour by defendant nos.1 to 4. It is also submitted that the counter claim has been filed only within 12 days after framing the additional issues and no evidence has been recorded with regard to those defendants who have filed their counter claim, the claim of appellants would not be defeated by this reason and thus, the plaintiff would not be prejudiced in any manner. Hence, prays for setting aside the impugned impugned judgment and counter claim of the appellant be taken on record.

9. In support of his contention, counsel for the appellant has placed reliance over the Judgment of Hon'ble Apex Court passed in the case of Mahendra Kumar and Another. vs. State of Madhya Pradesh and Others [(1987) 3 SCC 265] wherein it has been held that as per the provisions of Order 8 Rule 6-A(1), counter-claim can be filed after fling of written

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statement.

10. Per contra, counsel for the respondent, by way of submitting written arguments before this Court, has submitted that the learned trial Court as well as learned appellate Court have dismissed the counter suit of the appellant rightly after considering the evidence available on record. It is further submitted that the learned trial Court has rightly observed that the counter-claim was filed by the appellant belatedly and further rightly observed that looking to the sale deed executed in favour of the appellants and hence, the provisions of Section 52 of the Transfer of Property Acts shall be applied. Hence, the learned trial Court as well as first appellate court, both have passed the impugned judgments after considering the factual and legal aspect of the case. It is also submitted that if the appellants is continued the counter-suit, the conclusion of original suit as well as rights of original plaintiff, shall be affected. Counsel for the respondent has submitted that the provisions of Order 8 Rule 6-A of CPC shall not be applied in the case. Counsel for the respondent has submitted that the counter-suit has been filed five months belatedly from the date of cause of action. Therefore, prays for dismissal of the appeal filed by the respondent.

11. I have heard the counsel for the parties and perused the record.

12. In the present appeal the sole question which is to be considered by this Court is only that whether the appellant can filed the counter-suit even after filing of the written statements and what should be the limitation period for filing such counter suit from the date of cause of action.

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13. In this case, admittedly, the counter-suit is filed by the appellant within five months from the date of cause of action as per the admission of respondent in written arguments also.

14. On this aspect, the law laid down by Hon'ble Apex Court in the case of Mahendra Kumar and Another vs. State of Madhya Pradesh and Others [(1987) 3 SCC 265] is important to be considered. The Hon'ble Apex in para no.15 has dealt with the similar aspect which is as under:-

15. The next point that remains to be considered is whether Rule 6-A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6-A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule6-A(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 defense 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 mis-understood the provision of Rule 6-A(1) in holding that as the

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appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of High Court does not get any support from Rule6-A(1) of the Code of Civil Procedure. 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. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under Section 3(2)(b) of the Limitation Act has been filed by the appellants within three yeas from the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong in dismissing the counter-claim.

15. The aforesaid law settled in the case of Mahendra Kumar (supra) has been endorsed by the Full Bench of Hon'ble Apex Court in the case of Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Others [2019 Lawsuit SC 1878/(2020) 2 SCC 394]. The relevant paragraph Nos.14, 15, 16 and 25 are condign to be quoted here as under:-

14. Now we need to observe certain earlier judgments of this Court which have dealt with Order VIII Rule 6A.

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In Mahendra Kumar and Anr. v. State Of Madhya Pradesh and Ors., (1987) 3 SCC 265 [hereinafter referred to as 'Mahendra Kumar Case'], where the appeals were preferred against concurrent findings of the Courts below in dismissing the counterclaim as barred under Section 14 of the Indian Treasure Trove Act, 1878, this Court, while considering the scope of Rule 6A(1) of Order VIII of the CPC, has held that on the face of it, Rule 6A(1) does not bar the filing of a counterclaim by the defendant after he had filed the written statement. As the cause of action for the counterclaim had arisen before the filing of the written statement, the counterclaim was held to be maintainable. This Court further observed that under Article 113 of the Limitation Act, 1963, the period of limitation is three years from the date of the right to sue accrues, when the period of limitation is not provided elsewhere in the Schedule. As the counterclaim was filed within three years from the date of accrual of the right to sue, this Court held that the learned District Judge and the High Court were wrong in dismissing the counterclaim. The issue concerning applicability of limitation period for filing the counterclaim was also discussed in Jag Mohan Chawla And Another v. Dera

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Radha Swami Satsang & Ors., (1996) 4 SCC 699 and Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Day (Dead) by LRs., (1997) 8 SCC 174.

15. In the case of Vijay Prakash Jarath v. Tej Prakash Jarath ., (2016) 11 SCC 800, this Court directed the Court below to entertain the counterclaim which was filed 2½ years after framing of issues, as the evidence was still pending and this Court felt that no prejudice would be caused to the plaintiff. However, in the case of Bollepanda P. Poonacha & Anr. v. K.M. Madapa, (2008) 13 SCC 179 [hereinafter referred as 'Bollepanda Poonacha Case'], this Court while referring to Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350, discouraged the belated filing of counterclaims. Further, the Court elucidated on the serious harm caused by allowing such delayed filing. In any case, in Bollepanda Poonacha Case (supra), the Court could not expound any further as the counterclaim was rejected on the basis that the cause of action had arisen after the filing of the written statement.

16. The time limitation for filing of the counterclaim, is not explicitly provided by the Legislature, rather only limitation as to the accrual of the cause of action is

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provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order VIII Rule 6A. Having said so, this does not mean that counter‐ claim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time barred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order VIII Rule 6A.

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25. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the Legislature, 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

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the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counter claim till the 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.

emphasis supplied

16. In view of the aforesaid, the matter has been considered. Since, the additional issues were framed on 16.02.2018 and the matter was fixed for plaintiff's evidence for 26.02.2018 and the appellants filed their counter claim before commencement of evidence with regard to them, the delay of five months in filing the counter claim cannot be treated as substantial delay. Accordingly, both the substantial questions of law framed by this Court are answered positive in favour of the appellant. In view of the law laid down in Mahendra Kumar (supra) and Ashok Kumar Kalra (supra), the findings of learned trial Court as well as learned first Appellate Court with regard to dismissal of counter claim of the appellant treating it time barred, are not found justified. Otherwise also, if the counter-claim of the appellant is continued, there is no effect on the pleadings of the suit of respondent.

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(PREM NARAYAN SINGH)

JUDGE

17. Consequently, the appeal is allowed and the judgment and decree dated 15.12.2021 passed by the First Additional District Judge, Jaora, Ratlam in Regular Civil Appeal No. 14/2019 as well as the Judgment dated 07.04.2018 passed by Second Civil Judge, Class-I, Jaora, District Ratlam M.P. in Civil Suit No.2-A/2012, are hereby set aside. The learned trial Court is directed to take the counter-claim of the appellant on record and proceed in accordance with law.

18. Before parting, it is clarified that the observations given in this judgment are only with regard to filing of counter claim, hence, the trial Court is directed that it will not be influenced by the observations made in this judgment while deciding the suit.

Pending application, if any, stands closed.

AMIT

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