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SUPREME COURT OF INDIA
N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI, JJ.
Ashok Kumar Kalra - Petitioner
Versus
Wing Cdr. Surendra Agnihotri & Ors - Respondents
SLP (C) No. 23599 of 2018
Decided On : 19-11-2019
Per N. V. Ramana, J.
(a) Administration of justice - Procedural justice and substantive justice - Procedural justice meant to provide impetus to substantive justice - However, unlimited and unrestricted rights cannot be extended in the name of substantive justice. (Para 7)
(b) Code of Civil Procedure, 1908 - Order VIII Rule 6A - For advancing cause of justice and avoiding multiplicity of proceedings by placing embargo on the belated filing of written statement, setoff and counterclaim. (Para 11, 17)
(c) Interpretation of statute - Procedural law - Provisions should not be construed in such a way that it would leave the Court helpless - Procedural law is not an obstruction but an aid to justice. (Para 13)
(d) Code of Civil Procedure, 1908 - Order VIII Rule 6A - Limitation provided for accrual of cause of action, not filing of counterclaim - However, counterclaim would be governed by limitation provided under Limitation Act, 1963 - Further subject to discretion of the court to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. (Para 16, 18)
(e) Code of Civil Procedure, 1908 - Order VIII Rule 6A - No embargo on filing counterclaim after filing the written statement - Restriction is only with respect to accrual of the cause of action - However, this does not give absolute right to the defendant to file counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. (Para 20)
Per Mohan M. Shantanagoudar, J. (Concurring)
(f) Code of Civil Procedure, 1908 - Rule 6A(1) r/w Section 3(2)(b)(ii), Limitation Act, 1963 - Counterclaim treated as a plaint - Can be filed only if its cause of action complies with Order VIII Rule 6A(1); and second, it is filed within the period specified under the Limitation Act - No specific requirement of counterclaim being filed along with written statement - Filing subject to discretion of court to allow filing of counterclaim after filing of written statement - Order VIII Rule 9 and 10, and Order VI Rule 17. (Para 6, 7, 9, 10, 11)
(g) Code of civil Procedure, 1908 - Order VIII Rule 6B - Mention of cause of action of counterclaim in written statement - Applicable only when counterclaim is filed along with written statement. (Para 12)
(h) Code of civil Procedure, 1908 - Order VIII Rule 6 and 6A - Nature of setoff and counterclaim being different, limitation for filing set-off under Rule 6 cannot be read into Rule 6A. (Para 13)
(i) Code of civil Procedure, 1908 - Order VIII Rule 1A - Requirement of presenting documents in support of a counterclaim along with the written statement - Not mandatory. (Para 14)
(j) Code of civil Procedure, 1908 - Order VIII Rule 6A r/w Order VI Rule 17 and Order VIII Rule 9 - Counterclaim - Limitation - A belated counterclaim raised by way of an amendment to the written statement or as a subsequent pleading - Should not be allowed after the framing of issues and commencement of trial. (Para 18, 23)
Facts of the case:
A dispute arose between the Petitioner (defendant no. 2) and Respondent No. 1 (plaintiff) concerning performance of agreement to sell dated 20.11.1987 and 04.10.1989. Respondent No.1 (plaintiff) filed the suit for specific performance against the petitioner (defendant no. 2) on 02.05.2008. Petitioner (defendant No.2) herein filed a written statement on 2.12.2008 and counterclaim on 15.3.2009, in the same suit. By order dated 12.05.2009, the trial court rejected the objections, concerning filing of the counterclaim after filing of the written statement and framing of issues. Order dated 15.05.2009 was challenged before the High Court, in Civil Revision No. 253 of 2009, the High Court allowed the same and quashed the counterclaim.
Finding of the Court:
A belated counterclaim raised by way of an amendment to the written statement or as a subsequent pleading should not be allowed after the framing of issues and commencement of trial.
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JUDGMENT :
N.V. RAMANA, J.
1. Questions about procedural justice are remarkably persistent and usual in the life of Common Law Courts. However, achieving a perfect procedural system may be feasible or affordable, rather more manageable standards of meaningful participation needs to be aspired while balancing cost, time and accuracy at the same time.
2. The present reference placed before us arises out of the order dated 10.09.2018 passed by a two Judge Bench of this Court, wherein clarification has been sought as to the interpretation of Order VIII Rule 6A of the Civil Procedure Code (hereinafter referred to as “the CPC”), regarding the filing of counterclaim by a defendant in a suit. The reference order dated 10.09.2018 is extracted below:
“......... The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three Judge Bench to look into the effect of our previous judgments as well as whether the language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature.”
(emphasis supplied)
3. Before we proceed further, we need to allude to the brief factual background necessary for the disposal of this reference. A dispute arose between the Petitioner (defendant no. 2) and Respondent No. 1 (plaintiff) concerning performance of agreement to sell dated 20.11.1987 and 04.10.1989. Respondent No.1 (plaintiff) filed the suit for specific performance against the petitioner (defendant no. 2) on 02.05.2008. Petitioner (defendant No.2) herein filed a written statement on 2.12.2008 and counterclaim on 15.3.2009, in the same suit. By order dated 12.05.2009, the trial court rejected the objections, concerning filing of the counterclaim after filing of the written statement and framing of issues. Order dated 15.05.2009 was challenged before the High Court, in Civil Revision No. 253 of 2009, the High Court allowed the same and quashed the counterclaim. Aggrieved by the aforesaid order of the High Court, the petitioner (defendant No.2) herein approached the Division Bench of this court, which has referred the matter to a three Judge Bench.
4. The learned counsel appearing on behalf of the Petitioner submitted that the intent behind Order VIII Rule 6A of the CPC is to provide an enabling provision for the filing of counterclaim so as to avoid multiplicity of proceedings, thereby saving the time of the Courts and avoiding inconvenience to the parties. Therefore, no specific statutory bar or embargo has been imposed upon the Court’s jurisdiction to entertain a counterclaim except the limitation under the said provision which provides that the cause of action in the counterclaim must arise either before or after the filing of the suit but before the defendant has delivered his defence. The learned counsel also submitted that if permitting the counterclaim would lead to protracting the trial and cause delay in deciding the suit, the Court would be justified in exercising its discretion by not permitting the filing of the counterclaim. Relying on the judgments of this Court in Salem Advocate Bar Association, Tamil Nadu v. Union Of India, AIR 2005 SC 3353, and Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869, the learned counsel lastly submitted that rules of procedure must not be interpreted in a manner that ultimately results in failure of justice.
5. On the other hand, the learned Senior counsel for the respondent submitted that the language of the statute, and the scheme of the Order, indicates that the counterclaim has to be a part of the written statement. The learned senior counsel strengthened the above submission by relying on the statutory requirement that the cause of action relating to a counterclaim must arise before the filing of the written statement, and submitted that the counterclaim must therefore form a part of the written statement. The learned senior counsel also relied on the language of Order VIII Rule 6 of the CPC, which requires a defendant’s claim to
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