Point of Law: Mere production of a document along with written statement cannot be considered as a counter claim or a set off unless same is specifically raised by defendant with all its legal incidents.

JUDGMENT :

One of the main questions came up for consideration is with respect to the requirement of a replication in answer to a document relied on by the defendants in their written statement. A suit for partition was dismissed by the trial court on the ground that the beneficiary of Ext.A2 settlement deed was not made as a party to the suit and no challenge was raised either by amending the plaint or by submitting a replication against a Will relied on by the defendant. In appeal, the first appellate court set aside the decree and judgment of the trial court and allowed an amendment application to incorporate additional pleading denying the execution of Ext.B1 Will and remanded the matter back to the trial court, against which the defendant came up in appeal.

2. It is yet another example of delaying and defeating the administration of justice both in the hands of trial court and the first appellate court. Both the courts below had failed to appreciate the evidence adduced with respect to the due execution of Ext.B1 Will by examining one of the attesting witnesses as DW2. This would imply the meaning that the parties were well aware of the dispute involved in the suit and the documents relied on by the defendant, Ext.B1 Will. The attempt made to prove the due execution of Ext.B1 Will by examining one of the attesting witnesses was not even properly taken up either by the trial court or by the first appellate court, but an unnecessary remand was ordered by the first appellate court, that too, by allowing the parties to incorporate pleading by way of amendment against the execution and genuineness of Ext.B1 Will. It really amounts to putting the cart before the horse. Evidence was already adduced by examining one of the attesting witnesses in proof of due execution of the alleged Will. Then what remains is the appreciation of evidence and adjudication. But the first appellate court without adhering to the mandate under Rule 23, 23 A and 24 of Order XLI C.P.C. ordered a remand by setting aside the judgment and decree of the trial court.

3. It is submitted that the abovesaid amendment application for incorporating pleading challenging the due execution and genuineness of Ext.B1 Will is really unwarranted as the plaint pleading itself would be sufficient to answer the claim based on Ext.B1. Further, it is submitted that there is no need for submitting a replication or an amendment application disputing the due execution of Ext.B1, especially when the parties have adduced evidence fully knowing the dispute involved pertaining to Ext.B1.

4. A replication is mandated only in answer to a set off or counter claim raised by the defendant. Rule 6 and 6A to 6G of Order VIII C.P.C. is extracted below for reference:

“6. Particulars of set-off to be given in written statement.-

(1) Where in a suit for the recovery of money the defendant claims to set off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of set-off.-The written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

6A. Counter-claim by defendant.-

(1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any ri