IMPORTANT POINT
Counter claim cannot be filed after framing of issues for trial.

Dr. A.K. Rath, J.—This petition challenges the order dated 17.5.2014 passed by the learned Civil Judge (Sr.Division), Jaleswar in C.S.No.1 of 2011. By the said order, the learned trial court rejected the application of the defendants under 6 Rule 17 CPC for amendment of the written statement to introduce the counter claim.

2. The opposite parties as plaintiffs instituted the suit for partition and permanent injunction impleading the petitioner as well as opposite parties 7 to 11 as defendants. The defendants 1 and 7, petitioners herein, entered contest and filed written statement denying the assertions made in the plaint. After closure of the evidence of the plaintiffs, the defendants filed an application for amendment of the written statement seeking to introduce the counter claim. It is stated that they were not aware about the affairs of the property at the time of filing of the written statement. They could not disclose the land particulars, nor produced all documents while filing of the written statement. In the proposed amendment they sought declaratory relief and permanent injunction. The plaintiffs filed objection stating therein that evidence from the side of the plaintiffs have been closed. No reason has been assigned in the application for amendment of the written statement. By order dated 17.5.2014, the learned trial court rejected the application.

3. Mr. Mohanty, learned Advocate for the petitioners submitted that defendant no. 1 was looking after the case. Since he was ill, necessary facts could not be pleaded. On 16.8.2013 when the plaintiffs threatened the defendants to evict them from their possession, they filed counter claim. He further submitted that the kissam of one of the plot is Abadayoga Anabadi. The plaintiffs issued notice under Section 80 C.P.C. to the State Government and filed an application to implead the State of Orissa.

4. Per contra, Mr. Dey, learned Advocate for the opposite parties 1 to 6 contended that after closure of the evidence of the plaintiffs, the application for amendment of the written statement seeking introduction of counter claim has been filed. The State of Orissa is neither necessary nor proper party in a suit for partition. The petition has been filed to protract the litigation.

5. Before proceeding further it is apt to refer Order 8, Rule 6A C.P.C., which is hub of the issue:-

“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 counterclaim 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 plaint and governed by the rules applicable to plaints.”

6. On a bare reading of clause (1) of Rule 6A of Order 8 C.P.C. it is evident that the cause of action for filing of counter claim must accrue to the defendant against the plaintiff 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, whether such counter claim is in the nature of a claim for damages or not.

7. The apex Court in the case of Rohit Singh and others v. State of Bihar (now State of Jharkhand) and others, (2006