Point of Law : No pecuniary liability arises till the Court determine that the party complaining of the breach is entitled to damages.

JUDGMENT :

This Original Petition has been preferred by the defendant in O.S.No.624/2012 on the file of the IIIrd Additional Sub Court, Kozhikode (formerly O.S.No.190/2011 on the file of Sub Court, Thalassery) challenging Ext.P6 order, viz., order in I.A.No.5/2021 dated 28.10.2021. The respondent herein is the sole plaintiff before the trial court.

2. Heard the learned counsel Sri Millu Dandapani, appearing for the petitioner and Advocate K.V.Pavithran, appearing for the respondent.

3. It is argued by the learned counsel for the petitioner that the petitioner filed written statement in the Suit claiming Rs.16,83,000/- by the respondent herein, on 21.10.2011 and thereafter additional written statement was filed on 07.10.2021 with petition to receive the same. It is submitted further that by way of additional written statement, the petitioner put up plea of `adjustment' of the Suit amount towards the damages sustained to the petitioner which is assessed as Rs.77,41,970/-.

4. The respondent herein, the plaintiff in the Suit, filed objection and zealously opposed acceptance of additional written statement, which was filed after a period of 10 years with plea of `adjustment'.

5. It is submitted by the learned counsel for the respondent that there is no pleading in the original written statement regarding the adjustment and the amount which the defendant wanted to adjust is yet to be decided by the trial court. Further, unilateral adjustment is not permitted in law and the defendant could not raise a totally new case by way of adjustment, by filing additional written statement.

6. Reply affidavit also has been filed before this Court stating that when the original written statement was filed as early as on 21.10.2011, the plea of set off or counter-claim or `adjustment' not raised in the said original written statement and at a much belated stage, plea of `adjustment' being pressed into by filing additional written statement. It is averred further that the plea of `adjustment' is barred by limitation also.

7. While crystallysing the controversy being posed, reference to relevant provisions in the Code of Civil Procedure is essential. Order 8 Rule 6A of the Code of Civil Procedure permits a defendant in a Suit to plea `set off' or `counter claim' against the claim of the plaintiff in respect of any right or claim based on 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 limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. Similarly, Order 8 Rule 9 deals with subsequent pleadings. Order 8 Rule 9 is extracted hereunder for clarity:

“Subsequent pleadings:-- No pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.”

Thus in order to raise a plea of adjustment, permission of the Court contemplated under Order 8 Rule 9 is mandatory.

8. In a decision reported in [2009 KHC 4489 : 2009 (3) KLT SN 54 : 2009 (14) SCC 525], P.A.Jayalakshmi v. H.Saradha & Ors., while dealing with Order 8 Rule 9 and Order 6 Rule 17, the Apex Court held that ordinarily at a much belated stage, leave for filing additional written statement is usually not granted.

9. In another decision of the Apex Court reported in [2019 (5) KHC 735 : 2019 (4) KLT 790 : 2020 (2) SCC 394], Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri & Ors. (3 Bench decision), restrictions on filing counter-claim, after filing of written statement has been discussed and it has been held that there is no absolute right to the defendant to file counter-claim with substant