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IN THE HIGH COURT OF ALLAHABAD
SIDDHARTH, J.
Ramesh Chand Kingar and Another – Petitioners
Versus
Basant Kumar Bansal and Others - Respondents
Matters Under Article 227 No. 3110 Of 2018
Decided On : 15-03-2022
Counter Claim - Civil Injunction - Order 8, Rule 6-A C.P.C - Section 3 of the Limitation Act - The court discussed the provisions of Order 8, Rule 6-A C.P.C and Section 3 of the Limitation Act in relation to the filing of a counter claim, and emphasized the requirement for filing a counter claim before the written statement or before the time provided for filing written statement has expired. The court also highlighted the distinction between amendment of pleadings and filing a counter claim, and affirmed the judgment and order of the revisional court.
Fact of the Case:
The plaintiffs sought permanent prohibitory injunction against the defendants, who claimed the right to use a gallery. The defendants later sought relief for removal of illegal constructions through a counter claim.
Finding of the Court:
The court affirmed the judgment and order of the revisional court, stating that the counter claim was filed beyond the prescribed time limit and did not merit allowance.
Issues: The main issue was the timeliness of the counter claim filed by the defendants, and the applicability of Order 8, Rule 6-A C.P.C and Section 3 of the Limitation Act.
Ratio Decidendi: The court emphasized the requirement for filing a counter claim before the written statement or before the time provided for filing written statement has expired, as per Order 8, Rule 6-A C.P.C and Section 3 of the Limitation Act.
Final Decision: The petition lacked merit and was dismissed.
JUDGMENT :
1. Heard Sri Sumit Daga, learned counsel for the petitioners and Sri Jagdish Prasad Mishra, learned counsel for the respondents.
2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgment and order dated 20.03.2018 passed by the Additional District Judge, Court No. 15, Muzaffar Nagar in Civil Revision No. 85 of 2014 (Basant Kumar Bansal & Another vs. Ramesh Chand Kingar & Others).
3. Plaintiffs/respondents instituted an Original Suit No. 223 of 2009 against the defendants-petitioners & defendants-respondents for the relief of permanent prohibitory injunction praying that defendants may be restrained from using gallery of the plaintiffs in any manner, which is shown as A, B, C, D, E, F in plaint map. Defendants-petitioners are the contesting parties and they filed their written statement and denied the aforesaid plaint allegation. As per the plaintiffs-respondents, gallery shown as A, B, C, D, E, F exclusively belongs to them and defendants-petitioners have no right in the said gallery. However, defendants-petitioners claimed that they were using the said gallery since beginning just like setback of their house and their windows and drainage system were also towards this gallery. It was also stated by the defendants-petitioners that plaintiffs-respondents have no right in the said gallery but in their absence they have made some construction in the said gallery and also installed safety tank whereby plaintiffs-respondents deliberately closed the window and stopped the drainage system of the defendants-petitioners.
4. Learned court below vide its order dated 10.03.2010 directed both the parties to maintain status quo on spot in question and the said order was affirmed in appeal. Therefore, the order dated 10.03.2010 is in operation till today.
5. Defendants-petitioners raised all their objections in their written statement but at the time of filing of the said written statement, due to the some inadvertent mistake, they could not seek relief against the plaintiffs-respondents for removal of illegal constructions, therefore, defendants-petitioners moved their counter claim against the plaintiffs-petitioners for the relief that they may be directed to remove their illegal constructions in the aforesaid gallery and they may further be directed not to restrain the defendants-petitioners to use the said gallery. The said counter claim was moved by the defendants-respondents by means of amendment application dated 19.04.2014 being Paper No. 104-Ka. Plaintiffs-respondents filed their objection in the aforesaid amendment application which was allowed by the Civil Judge, vide its order dated 20.10.2014 and the amendment was incorporated in written statement. The plaintiffs-respondents challenged the aforesaid order dated 20.10.2014 in Civil Revision No. 85 of 2014 which was allowed and hence this petition has been filed challenging the same.
6. Learned counsel for the defendants-petitioners has submitted that against the order allowing amendment application, revision was not maintainable and no failure of justice or irreparable loss was caused to the other side and therefore, such order does not falls under clause (a)(b) of Section 115(1) of C.P.C. He has relied upon the judgment of the Apex Court in the case of Prem Bakshi and others vs. Dharam Dev and others, 2002(1) A.W.C (SC) Page 484. He has stated that in order to avoid multiplicity or judicial proceedings, counter claim can be filed by way of amendment as held by this Court in the case of Hazari Lal and others vs. Brahma Nand and others, 2007 (1) ARC, Page No. 377. He has further submitted that counter claim can be filed at a later stage and plea of limitation does not applies as the defendants-petitioners did not brought on record new facts by way of counter claim. All the facts were already pleaded in the written statement. He has placed reliance on the judgment of this Court in the case of Smt. Kailashpati De
The main legal point established in the judgment is the requirement for filing a counter claim before the written statement or before the time provided for filing written statement has expired, as pe....
Counter claims must be raised before issues are framed and within the limitation period, as per the Code of Civil Procedure and Limitation Act.
The court has the discretion to entertain filing of the counter claim after the written statement, but such filing should not be done at a highly belated stage. The court should consider various fact....
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 arise before the defendant delivers their defense; otherwise, they are barred by limitation under the Code of Civil Procedure.
The court affirmed that counter claims can be filed to prevent multiplicity of proceedings, even after the written statement, as long as they comply with legal principles.
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