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SUPREME COURT OF INDIA
DINESH MAHESHWARI, ANIRUDDHA BOSE, JJ.
Mahesh Govindji Trivedi – Appellant
Versus
Bakul Maganlal Vyas and Others – Respondents
Civil Appeal No. 7203 of 2022, SLP (Civil) No. 20578 of 2021
Decided On : 12-10-2022
Civil Procedure Code, 1908 – Order VIII Rule 6-A – Rule 95 of Bombay High Court (Original Side) Rules – Counter-claim by defendant – Suit for Specific Performance – Though normal rule is that subsequent to filing of written statement, counter-claim cannot be filed after issues have been framed, under exceptional circumstances, counter-claim may be permitted to be filed even after issues have been framed but before commencement of recording of plaintiff’s evidence – Rules of procedure are intended to subserve cause of justice rather than to punish parties in conduct of their case – Counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of written statement – Requirements of Order VIII Rule 6-A CPC or Rule 95 of Rules do not operate as a bar over prayer of appellant for taking belatedly filed counter-claim on record, which was indeed filed before framing of issues – Impugned order of Division Bench wholly unjustified – Impugned order as passed by Division Bench of High Court set aside and order as passed by Single Judge restored. (Paras 13.1, 14, 14.1, 15 and 19)
Facts of the case:
Present appeal by the defendant in a pending suit for specific performance (Suit No. 1821 of 2004) is directed against the judgment and order dated 30.11.2021, as passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No. 10 of 2020 arising from an order dated 02.05.2019 in Notice of Motion (L) No. 1014 of 2019 in the suit. By said order dated 02.05.2019, Single Judge of High Court dealing with the trial of suit in question, had accepted notice of motion moved by the defendant-appellant so as to take belatedly filed counter-claim on record. Division Bench of High Court has, however, set aside the order so passed by Single Judge and has remitted the matter for consideration afresh, essentially on the ground that the plaintiffs were not afforded adequate opportunity to file reply and to contest the said notice of motion.
Findings of Court:
Division Bench of High Court, while passing impugned order dated 30.11.2021, proceeded in a rather cursory manner in directing reconsideration of prayer of appellant for taking the counter-claim on record without considering relevant aspects of the proceedings in the suit and the law applicable thereto as also without considering the likely impact of its order on the proceedings, which had already taken place and which were under progress.
Result : Appeal allowed.
Certainly. Based on the provided legal document, the key points are as follows:
The court clarified that under certain exceptional circumstances, a counter-claim can be filed even after issues have been framed, but before the commencement of recording of the plaintiff’s evidence. Normally, such filings are restricted to the period before issues are framed, but flexibility exists to promote justice (!) (!) (!) (!) .
The legal provisions governing counter-claims permit a defendant to set up a counter-claim either before or after filing the written statement, provided it is before the defendant has delivered their defense or the time for defense has expired. The counter-claim should have the same effect as a cross-suit and be filed within the prescribed limitation period, ideally before issues are framed (!) (!) (!) (!) (!) .
The rules emphasize that the filing of a counter-claim after a significant delay, especially after issues are framed, is generally disallowed unless exceptional circumstances are demonstrated. The court must exercise its discretion judiciously, considering factors like delay, limitation, prejudice, and the overall interests of justice (!) (!) (!) (!) (!) .
The procedural law aims to avoid multiplicity of proceedings and to facilitate final adjudication of all claims in a single suit. Filing a counter-claim at a belated stage without proper leave or beyond the permissible period undermines this objective and hampers judicial efficiency (!) (!) .
The court highlighted that a counter-claim filed long after the original written statement, especially when issues have been framed and evidence is under consideration, generally cannot be permitted unless compelling reasons are presented and the court’s discretion is exercised in favor of justice (!) (!) (!) .
The decision underscores that procedural rules are meant to serve substantive justice, not to penalize parties for delays. Therefore, courts should adopt a balanced approach, allowing exceptions in genuine cases where justice would otherwise be compromised (!) (!) .
The importance of considering the impact of procedural orders on ongoing proceedings was emphasized. Orders that significantly alter the stage of litigation, especially after substantial progress, should be carefully scrutinized to prevent disrupting the course of justice (!) (!) .
The court also noted that procedural orders passed in one proceeding, such as those related to transfer or disposal of property, do not necessarily bar subsequent filings or pleadings, provided they do not conflict with the overarching principles of justice and procedural fairness (!) .
Overall, the court set aside the order of the appellate division, restoring the original order that permitted the filing of the counter-claim before issues were framed, emphasizing that procedural flexibility exists to ensure substantive justice and avoid unnecessary multiplicity of litigation (!) (!) .
The decision advocates for a pragmatic and justice-oriented approach, where procedural technicalities should not hinder the just resolution of disputes, especially when the delay is justified or the counter-claim is closely related to the main suit (!) (!) (!) .
Please let me know if you need further elaboration or specific legal analysis on any point.
JUDGMENT :
DINESH MAHESHWARI, J.
1. Leave granted.
2. This appeal by the defendant in a pending suit for specific performance (Suit No. 1821 of 2004) is directed against the judgment and order dated 30.11.2021, as passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No. 10 of 2020 arising from an order dated 02.05.2019 in Notice of Motion (L) No. 1014 of 2019 in the said suit.
2.1. By the said order dated 02.05.2019, the learned Single Judge of the High Court dealing with the trial of suit in question, had accepted the notice of motion moved by the defendant-appellant so as to take the belatedly filed counter-claim on record. The Division Bench of the High Court has, however, set aside the order so passed by the Single Judge and has remitted the matter for consideration afresh, essentially on the ground that the plaintiffs were not afforded adequate opportunity to file reply and to contest the said notice of motion.
3. In this appeal, the main plank of submissions on behalf of the defendant-appellant is that in view of the order dated 26.02.2021 as passed by this Court in relation to the incidental proceedings pertaining to the same suit, the proceedings in question need to progress with the counter-claim on record; and, in any case, there was no justification for the Division Bench interfering with the considered order of the Single Judge taking the counter-claim on record. On the other hand, it is submitted on behalf of the plaintiffs-respondents that the Division Bench of the High Court has rightly interfered because the order dated 02.05.2019 was passed by the Single Judge without giving opportunity to the plaintiffs-respondents to contest the notice of motion; and in the true operation of the applicable rules of procedure, the counter-claim in question, which was filed nearly 13 years after filing of the written statement, could not have been taken on record, particularly when there had not been a semblance of reason for such a gross and inordinate delay.
3.1. Thus, the short question calling for determination in this appeal is as to whether the Division Bench of the High Court has been justified in interfering with the order passed by the Single Judge for taking the counter-claim on record.
4. Apropos the foregoing outline and the short question involved, the background aspects of the matter could be noticed in brief, and only to the extent relevant for the present purpose.
4.1. In relation to the suit property situated at Vile Parley, Dadabhai Road, Mumbai, the plaintiffs-respondents have filed the suit in question bearing No. 1821 of 2004 on 10.06.2004, seeking specific performance of an alleged agreement for transfer dated 28.05.2001, said to have been executed by its owner, late Ramalaxmi Ravishankar Trivedi, who was the sister of the appellant and who expired on 31.01.2004. In the said suit, apart from the appellant, other legal heirs of the deceased owner were also arrayed as defendants. The appellant filed his written statement in the suit on 16.11.2005.
4.2. It has been pointed by the appellant that he had acquired all the rights in the suit property by testamentary succession and by settlement with the said other legal heirs of the deceased owner. According to the appellant, the matter relating to his succession to the suit property ultimately got settled only on 05.04.2017. Thereafter, on 16.01.2018, for the appellant having acquired ownership rights in the suit property, Chamber Summons (L) No. 559 of 2017 was filed in order to delete other defendants from Suit No. 1821 of 2004; the said chamber summons was allowed and the defendant Nos. 1, 2, 4, and 5 were deleted from the array of parties.
4.3. Thereafter, on 07.09.2018, the defendant-appellant filed his counter-claim (signed on 18.08.2018) in this suit in the registry of the High Court. When the suit was taken up for framing of issues on 05.12.2018, the learned Single Judge of the High Court dealing with the suit took objection against suc
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