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1989 Supreme(Ori) 314
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
BHAGABAT SAHU (DEAD) L.RS. ADARI DEI AND OTHERS - APPELLANT
Versus
MANMATH KUMAR SAHU AND OTHERS - RESPONDENT
Civil Revision No. 845 of 1986
Decided On : 01-12-1989
M. Patra, U.S. Patnaik, D. Deo, D. Mohapatra, B. Brahamachari, S.R. Patnaik, S.K. Ray and B.M. Patnaik, for the Appellant; P.K. Mishra, N.C. Pati, A.K. Nanda and Bhimsen Sahu, for the Respondent
A counterclaim can only be made 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 defense or before the time limited for delivering his defense has expired.
Headnote:
ORDER 8 RULE 6-A, CPC - COUNTER-CLAIM - AMENDMENT OF WRITTEN STATEMENT - CAUSE OF ACTION ARISING AFTER FILING OF WRITTEN STATEMENT - NOT PERMITTED - ORDER 8 RULE 8, CPC - NEW GROUND OF DEFENCE - NOT APPLICABLE TO COUNTER-CLAIM - ORDER 8 RULE 6-C, CPC - EXCLUSION OF COUNTER-CLAIM - PLAINTIFF'S RIGHT TO APPLY FOR EXCLUSION - NOT AFFECTED BY AMENDMENT OF COUNTER-CLAIM.
Fact of the Case:
Plaintiffs filed a suit for title, possession, and consequential permanent injunction. Defendants filed a written statement disputing Plaintiffs' assertion and made a counterclaim of their title. Plaintiffs objected to the amendment of the written statement to introduce the counterclaim. The trial court allowed the amendment, and Plaintiffs filed a Civil Revision.
Finding of the Court:
The court held that the trial court exercised jurisdiction with material irregularity in allowing the application for amendment of the written statement making a counterclaim in respect of a cause of action arising subsequent to the filing of the counterclaim. However, the court clarified that the rejection of the application would not bar the Defendant from filing a separate suit.
Issues: Whether a counterclaim can be amended in respect of a cause of action arising after filing of the written statement.
Ratio Decidendi: The court interpreted Order 8 Rule 6-A, CPC, and held that a counterclaim can only be made 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 defense or before the time limited for delivering his defense has expired. The court further held that Order 8 Rule 8, CPC, which allows for the raising of new grounds of defense arising after the institution of the suit, does not apply to counterclaims. The court also referred to Order 8 Rule 6-C, CPC, which provides for the exclusion of a counterclaim, and held that the Plaintiff's right to apply for exclusion would be affected if the amendment of the counterclaim was allowed after issues are settled.
Final Decision: The court allowed the Civil Revision and set aside the trial court's order allowing the amendment of the written statement to introduce the counterclaim.
JUDGMENT :
S.C. Mohapatra, J. - Plaintiffs are the Petitioners in this Civil Revision against the order allowing amendment of the written statement so far as the counter claim.
2. Suit is for title, possession and consequential permanent injunction. Defendant Nos. 1 to 3 in their written statement filed on 24-6-1981 while disputing Plaintiffs' assertion made a counter claim of their title in respect of the suit land. When the suit was pending, Plaintiffs made construction on their own land to obstruct which Defendants filed a suit for injunction. Such suit having been dismissed, appeal was filed. They filed an application for amendment of the written statement making counter claim which Plaintiffs assert to be the same as the claim in their suit. Plaintiffs objected to the application for amendment. Learned Munsif having allowed the amendment, this Civil Revision has been filed assailing the order.
3. There is no dispute that by amendment of the written statement counter claim has been made in respect of cause of action arising after filing of the written statement and counter-claim. Mr. M. Patra, learned Counsel for the Petitioners submitted that in view of the clear language of Order 8 Rule 6-A, CPC there is no scope for filing a counter-claim after filing of the written statement and as such, amendment to written statement introducing a counter-claim could not have been allowed.
4. Order 9 Rule 6-A, CPC reads as follows:
6.A. 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 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 limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The Plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the Defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a point and governed by the rules applicable to point.
5. Aforesaid provision was subject matter of consideration of this Court in 1985 (1) O.L.R.256 Shri Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena v. Paramananda Routrai and Ors. In that case Defendant sought to introduce counter-claim of title by amendment. It was held that by amendment of written statement such a counter-claim cannot be made. Same view was taken in Prafulla Kumar Samantaray Vs. Smt. Ranjita Samantaray. Correctness of both the decisions was subject matter of consideration of the division Bench in the decision reported in Mangulu Pirai Vs. Prafulla Kumar Singh and Others. Overruling the decisions of this Court to this effect, it was held;
... the words " either before or after filing of the suit but before the Defendant has delivered his defence or before the time limited for delivering his defence has expired" appearing in Order 8, Rule 6-A(1) mean to limit the right of the Defendant to set up by way of counter claim in respect of a cause of action which arose after he delivered his defence or after the expiry of the date for filing his defence only. In other words, the enabling provision introduced by the 1976 amendment entitles a Defendant in a suit to 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 him against the Plaintiff " either before or after the filing of the suit but before the Defendant has delivered his defence or before
