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IN THE HIGH COURT OF CALCUTTA
HIRANMAY BHATTACHARYYA, J.
Dilip Kumar Ray – Appellant
Versus
Srabanti Sen & Anr. – Respondents
C.O. 3554 of 2023
Decided on : 05-04-2024
(A) Code of Civil Procedure - Order 6 Rule 17 and Order 8 Rule 6A - Amendment of written statement for counter-claim - Application allowed by Trial Judge - Counter-claim barred by limitation as cause of action arose after filing of written statement - Court set aside the order allowing amendment. (Paras 4, 12, 13)
(B) Limitation - Time limit for filing counter-claim - Not explicitly provided by legislature - Right to file counter-claim limited by accrual of cause of action under Order 8 Rule 6A. (Paras 10, 12)
Facts of the case:
The petitioner filed a suit for declaration of tenancy and permanent injunction against the defendants, who sought to amend their written statement to introduce a counter-claim after the cause of action arose post-filing of the suit.
Findings of Court:
The Trial Judge's order allowing the amendment was set aside due to the counter-claim being barred by limitation as per the provisions of the Code of Civil Procedure.
Issues: Whether the counter-claim was permissible given the timing of the cause of action relative to the filing of the written statement.
Ratio Decidendi: The court ruled that the counter-claim was not valid as the cause of action arose after the written statement was filed, thus violating the provisions of Order 8 Rule 6A.
Result: Order allowing amendment set aside.
JUDGMENT :
1. This civil order is at the instance of the plaintiff and is directed against an order No.27 dated 18th August, 2023 passed by the learned Civil Judge, (Junior Division), 1st Court, Chandannagar, District Hooghly.
2. By the order impugned, the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement for setting up a counter-claim was allowed.
3. The learned advocate appearing for the petitioner submits that the counter-claim, which the defendant seeks to introduce by way of amendment is barred by limitation and therefore, the learned Trial Judge ought not to have allowed the application for amendment.
4. Learned advocate appearing for the opposite party submits that the learned Trial Judge after relying upon a decision of the Hon’ble Supreme Court in the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra Agnihotri & Ors. reported at (2020) 2 SCC 394 allowed the application for amendment upon holding that the outer limit for filing counter-claim is the stage of framing of issues, which is yet to arrive.
5. Heard the learned advocates for the parties and perused the materials placed.
6. The petitioner herein filed a suit for declaration that he is a tenant under the proforma defendant no.2 that is the Chairman, Bhadreswar Municipality and for a declaration that the defendant no.1 do not have any title in respect of the suit property. The petitioner also prayed for an order of permanent injunction restraining the defendants from interfering with the peaceful possession of the petitioner in the suit property.
7. The opposite party no.1 is contesting the said suit by filing a written statement. Thereafter, the said opposite party filed an application under Order 6 Rule 17 of the Code praying for amendment of the written statement for setting up a counter-claim.
8. From the schedule of amendment of the application, it is evident that the opposite party no.1 sought for a decree of declaration that she has got tenancy right over the schedule property and that the plaintiff has got no right to possess the suit property being an illegal occupier. A decree for recovery of khas possession against the plaintiff was also prayed for in the said application. The opposite party no.1 sought to insert paragraph 15(A) after paragraph 15 of the original written statement, which states that the cause of action for the counter-claim initially arose after filing of the suit on 25th February, 2022 and finally on 4th March, 2022. From paragraph B of the Schedule of amendment, it appears that on 25th February, 2022, the defendant along with husband went to the suit premises and asked the plaintiff to quit and vacate the schedule premises.
9. It is not in dispute that the written statement was filed on 1st April, 2021. The cause of action for the counter-claim arose on 25th February, 2022 i.e. after filing of the written statement.
10. Order 8 Rule 6A of the Code of Civil Procedure states that “a defendant in a suit may, in addition to his right of pleading of 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 limit for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not”.
11. Upon a bare reading of the aforesaid provision, it is evident that the cause of action of the counter-claim has to arise before the defendant has delivered his defence or before the time limit limited for delivering his defence has expired. In the case on hand, the cause of action for counter-claim as pleaded in the amendment application is after the filing of the written statement.
12. The Hon’ble Supreme Court in Ashok Kumar Kalra (supra) held that the time limit for filing of the counter-claim is not explicitly provided by the l
Counter-claims must arise before the defendant delivers their defense; otherwise, they are barred by limitation under the Code of Civil Procedure.
The main legal point established is that while the general rule is to file a counterclaim at the time of filing the written statement, there is no bar to raising it at any time later, and the issue o....
When court had no discretion to disobey mandate of law namely, Section 3(i) r/w 3(2)(b)(ii) of Limitation Act, 1963, and therefore, it could not have granted leave to make a Counterclaim by amending ....
A counterclaim must be raised before issue framing begins; late submissions risk disrupting judicial efficiency and violate procedural rules.
Counter claims must be raised before issues are framed and within the limitation period, as per the Code of Civil Procedure and Limitation Act.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
Counter-claims must be filed independently and cannot be included in an amendment application to a written statement.
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