IMPORTANT POINT
Counter-claim – Defendant can claim set-off of any ascertained sum of money legally recoverable by him from plaintiff, against plaintiff’s demand, in a suit for recovery of money – Order 8 Rule 6-A of CPC does not put embargo on filing counterclaim after filing written statement – Restriction is only with respect to accrual of cause of action.

JUDGMENT

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.1.

2. In the order dated 10.01.2025, it is recorded that the O.P. No.3 service has been effected and the legal heirs of deceased O.P. No.2 has been served through counsel who is appearing in the suit and the said report is at Flag-A. On that day, the matter was adjourned to provide them one more opportunity to appear and in spite of that they have not appeared, as such this petition is being heard on merit.

3. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 06.02.2023 passed by learned Civil Judge (Sr. Division-II), Jamshedpur in Title Suit No.89 of 2016 whereby the learned Court has been pleased to treat the written statement and counter claim filed by the opposite party No.1 and admitted the same at the stage of final argument in Title Suit No.89 of 2016. Further prayer is made for quashing of the order dated 01.02.2023 passed in the said suit whereby the sheristadar report was called by the learned Court after lapse of almost six years from the date of filing of the same.

4. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that the petitioner is a plaintiff in Title Suit No.89 of 2016 pending before the learned Civil Judge (Sr. Division-II), Jamshedpur. He submits that the defendant No.1 is the contesting defendant and defendant Nos.2 and 3 are the proforma defendants. He further submits that the defendant No.2 has left for her heavenly abode and subsequently she has been substituted by the legal heirs successor. He further submits that a family amicable arrangement deed was entered into by the legal heirs of Late Gwendoline Francis and Late Victor Francis on 1st of September, 2012 at Jamshedpur. By way of referring to the said arrangement contained in Annexure-1 particularly Clause 10 he submits that it was mutually agreed that the first party C.M. Francis will arrange to make suitable amount arranged according to his convenience for purchase of one flat each for the enjoyment of third and fourth party and third and fourth party will not give any pressure on the first party or his family members for any unreasonable liking for choice in the matter of acquiring the flat for them, subject to a maximum amount of Rs.15,00,000/- only per flat within a period of five years, or Rs.15,00,000/- only in cash to be paid in installments to third and fourth party within a span of five years i.e. option of cash Rs.15,00,000/- (Rupees Fifteen Lakhs) only for a flat worth Rs.15,00,000/- (Rupees Fifteen Lakhs) only in the town of Jamshedpur and amount to be taken from the income of the school after all expenditures. He submits that since the said Clause 10 was not complied with, the title suit was instituted in the form of specific performance of family arrangement dated 01st September, 2012. He submits that on the notices, the defendants have appeared and filed their written statement. He submits that the suit was instituted on 24.06.2016 and on 29.11.2016 the written statement was filed by the defendants and further on 04.08.2022 the plaintiff’s evidence was closed and on 05.12.2022 defendant’s evidence was closed and on 13.12.2022 argument was commenced.

5. He submits that on 20th January, 2023 a petition was filed saying that the averment is there of counterclaim and written statement is there that may kindly be allowed and the learned Court has been pleased to allow the same and treated the same as counter claim. He submits that after such a long period the said petition was allowed which is not in accordance with law. He draws the attention of the Court to Order 8 Rule 6A and submits that in light of the provisions made therein, the counterclaim is also required to be in the form of the plaint itself. The procedure further prescribed that in the counterclaim the separate numbers are being provided and the procedure of suit is being follo