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2023 Supreme(Online)(CAL) 14104
CALCUTTA HIGH COURT
SIDDHARTHA ROY CHOWDHURY, J
ATANU MUKHERJEE & ANR. – Appellant
Versus
JUTHIKA MUKHERJEE & ORS. – Respondent
Civil Revision No. CO 3430 of 2006
For the Appellants/Petitioners: Mr. Malay Kr. Ghosh, Ms. Kakali Samajpaty
For the Respondents: Mr. Bikash Kr. Chattopadhyay, Ms. Sohini Chakraborty
Counter claims cannot be filed after issues are framed in court; existing procedures must be strictly followed.
Headnote:(A) Constitution of India - Article 227 - Jurisdiction of High Court in revisional applications - The petitioner challenged an order passed by the Trial Court allowing a counter claim after the evidence was closed, which was found to be a jurisdictional error. Relevant provisions of the Code of Civil Procedure discussed included Order 6 Rule 17 and Order 8 Rule 6A. (Paras 1, 9, 10)
(B) Counterclaims - Permissibility and timing - It was ruled that a counter claim cannot be filed after issues are framed in the case, emphasizing that any liberty granted by the Trial Court to file such claims is not absolute and must align with the procedural norms. (Paras 5, 10)
Facts of the case:
The application sought to overturn the Trial Court's order in a partition suit where the defendant sought to file a counter claim late in the proceedings, arguing jurisdictional grounds against the ruling.
Findings of Court:
The High Court found the order impugned to be a grave jurisdictional error and set it aside, reinforcing the need for adherence to procedural guidelines regarding counter claims.
Issues: Determination of the validity and timing of counter claims in the context of the Code of Civil Procedure, particularly in light of prior rulings.
Ratio Decidendi: The High Court determined that counter claims could not be entertained post-issue framing in lieu of established legal precedents that outline restrictive measures regarding delay.
Result: The order impugned was set aside.
| Table of Content |
|---|
| 1. application under article 227 (Para 1 , 2) |
| 2. background of the partition suit (Para 3) |
| 3. arguments regarding counter claims (Para 4 , 5 , 6) |
| 4. court's observations on established procedures (Para 7 , 8 , 9) |
| 5. ruling on jurisdictional error (Para 10) |
| 6. final remarks on disposal (Para 11) |
1. This application under Article 227 of the Constitution of India challenges the Order No. 66 dated 1st August, 2006 passed by learned 2 nd Civil Judge (Senior Division), Barasat, North 24 Parganas in Title Suit No. 51 of 1996.
2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.
3. Briefly stated, Nirmal Mukherjee, predecessor-in-interest of the plaintiff brought a suit being Title Suit No. 51 of 1996 against the defendant for partition and permanent injunction. The defendant has been contesting the suit by filing written statement denying all material allegations made in the plaint. It is contended that the parties do have a property at Rahara which has not been brought within the hotchpotch 2 of the schedule of the plaint of the partition suit. The defendant also filed a counter claim which was rejected by learned Trial Court on 25th November, 2003 vide Order No. 42. While rejecting the prayer for counter claim, learned Trial Court gave liberty to the defendant to raise the points at the appropriate stage if necessary. After conclusion of the evidence of plaintiff as P.W. 1, the defendant again filed the petition for counter claim and by the order impugned learned Trial Court was pleased to allow the same, which is the order impugned.
4. Heard Mr. Malay Kr. Ghosh, learned Senior Counsel representing the petitioner. It is submitted by Mr. Ghosh that with the commencement of trial neither the provision as laid down under Order 6 Rule 17 nor the provision of Order 8 Rule 6A of the Code of Civil Procedure can be invoked. In support of his contention Mr. Ghosh places his reliance upon the decision of a Division Bench of this Court in Sree Sree Iswar Radha Behari Jew vs. Malati P. Soni reported in AIR 2019 Cal 131 wherein it is held :- “38. The question raised in the reference is, thus, answered as follows : the expression “commencement of trial” in the proviso to Order VI, Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier.”
5. It is further submitted by learned Counsel that Hon’ble Apex Court in Ashok Kumar Karla vs. Wing CDR. Surendra Agnihotri & Anr. reported in (2020) 2 SCC 394 , while answering a reference was pleased 3 to hold that it is not mandatory to file counter claim along with the written statement, rather the restriction is only with respect to the accrual of the cause of action. However, this does not give absolute right to the defendant to file the counter claim with substantive delay. It is held that the Court is to take into consideration the outer limit for filing the counter claim, which is pegged till the issues are framed. But in any case the counter claim could not be filed after framing of the issues. Therefore, the learned Trial Court, according to Mr. Ghosh, learned Senior Counsel committed jurisdictional error in passing the order impugned.
6. Refuting such contention Ms. Sohini Chakraborty, learned Counsel for the defendant submits that the amended provision of Order 6 Rule 17 of the Code of Civil Procedure came into force in the year 2002 and Section 16 of Civil Procedure Code Ame
