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SUPREME COURT OF INDIA
Jagdish Singh Khehar, C. Nagappan, JJ.
Vijay Prakash Jarath – Appellant
Versus
Tej Prakash Jarath – Respondent
Civil Appeal Nos. 2308-2309 & 2310 of 2016 (Arising out of SLP(C) Nos. 8536-8537 of 2008 & 32118 of 2009)
Decided on : 01-03-2016
Facts of the case:
After the issues were framed on 18.10.1993, the counter claim was filed by the appellants before this Court (i.e. by defendant Nos.3 and 4 before the trial court) almost two and a half years after the framing of the issues.
Findings of the Court:
There was no justification whatsoever for the High Court to have declined, the appellant before this Court from filing his counter claim on 17.06.1996, specially because, it is not a matter of dispute, that the cause of action, on the basis of which the counter claim was filed by defendant Nos.3 and 4, accrued before their written statement was filed on 11.11.1992.
The cause of action for which the counter-claim was filed in the present case, arose before the respondent-plaintiff filed the suit (out of which these petitions/appeals have arisen). It is therefore apparent that the appellants before this Court were well within their right to file the counter-claim.
Result:
Appeals allowed.
Key Points: - Point 1 (!) - Point 2 (!) - Point 3 (!) - Point 4 (!) - Point 5 (!) - Point 6 (!) - Point 7 (!) - Point 8 (!) - Point 9 (!) - Point 10 (!)
JUDGMENT :
Jagdish Singh Khehar, J.
Civil Appeal Nos.2308-2309 of 2016 (Arising out of SLP(C) Nos. 8536-8537 of 2008)
1. The respondent before this Court Tej Prakash Jarath filed Suit No.608 of 1992 on 09.11.1992. In the aforesaid suit, defendants Nos.3 and 4 Om Prakash Jarath (the father of the plaintiff in the suit) and Vijay Prakash Jarath (the elder brother of the plaintiff) respectively, filed written statements on 11.11.1992. Thereupon, issues came to be framed on 18.10.1993. After the framing of the issues, the petitioners before this Court (i.e. defendant Nos.3 and 4 in the original suit), filed a counter-claim on 17.06.1996 i.e. almost two and a half years after the framing of the issues.
2. The trial court, vide its order dated 28.10.1996, accepted the aforesaid counter-claim. The above order dated 28.10.1996, came to be assailed by the respondent-plaintiff-Tej Prakash Jarath through Civil Miscellaneous Writ Petition No.1266 of 2001, before the High Court of Uttarakhand at Nainital (hereinafter referred to as `the High Court’). The High Court relying upon the judgment of this Court in Rohit Singh & ors. vs. State of Bihar (Now State of Jharkhand) & Ors., (2006) 12 SCC 734, concluded, that the counter-claim filed by the petitioner-defendant Nos.3 and 4 before the trial court, was not legally acceptable. The order passed by the High Court dated 02.01.2008, recording the above conclusion, has been assailed through the instant special leave petitions.
3. Leave granted.
4. Before adverting to the merits of the controversy, we would first endeavour to deal with the issues as to whether the High Court correctly applied the judgment rendered by this Court in Rohit Singh’ case (supra), to the controversy in hand. In order to appreciate the conclusions drawn by this Court in Rohit Singh’s case (supra), the following observations (relating to the facts and conclusions) recorded therein need to be taken into consideration:
“17. We shall first consider whether there was a counterclaim in the suit in terms of Order 8 Rule 6A of the Code in this case. The suit was filed against the Divisional Forest Officer and the State of Bihar as Defendants 1 and 2 on 26.2.1996 by Respondent No.6 herein. After the written statement was filed by the defendants, issues were framed and the suit went to trial. On 3.6.1996 and 6.6.1996 the evidence on the side of the plaintiff was concluded. On 14.6.1996 the evidence on the side of the defendants was completed. On 24.6.1996 arguments were concluded. Judgment was reserved. 25.6.1996 was fixed as the date for pronouncing the judgment. The judgment was not pronounced and it appears that the Judge was subsequently transferred. Therefore, on 20.8.1996 arguments were again heard by the successor Judge and judgment was reserved. 27.8.1996 was fixed as the date for judgment. Apparently, it was not pronounced. It is thereafter that Defendants 3 to 17 filed an application on 11.9.1996 for intervention in the suit. We have already referred to the allegations in that application for impleading filed. We only notice again that they claimed to be in possession of the property and that their presence before the court was necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. On 19.9.1996 the application for intervention was allowed. On 30.9.1996 a written statement was filed by Defendants 3 to 12. We have already summarised the pleas raised therein.
18. After this, the witnesses of the plaintiff were recalled and permitted to be cross-examined by these Defendants. That was on 5.10.1996. Again the witnesses for defendants 1 and 2, were recalled and they were permitted to be cross-examined on behalf of these defendants. The evidence on the side of Defendants 3 to 17 was let in. It commenced on 24.2.1997 and was closed on 30.1.1997. Thereafter, arguments were heard again and the arguments on the side of the defendants including that of Defendants
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