Counterclaim not entertainable after issues framed and substantial trial progress; trial court to address via commissioner report.

ORDER

The civil revision petition has been preferred by the first defendant to direct the District Munsif, Ambattur to number the counter claim filed by the petitioner in I.A. Sr. No.2657 of 2023 in O.S. No.119 of 2008.

2. The first defendant filed counter claim before the trial court which was not taken on file and therefore, he sought for direction to number the counter claim.

3. The learned counsel for the first respondent / plaintiff submits that the suit is of the year 2008, the revision petitioner / first defendant already filed the written statement, issues were framed, trial was commenced and PW1 was examined. Thereafter, the first defendant has come forward with this counter claim which cannot be entertained. Therefore, the Court below has rightly refused to admit the said counter claim.

4. Per contra the learned counsel for the revision petitioner submits that after the receipt of the commissioner report, the first defendant/ revision petitioner came to know that the plaintiff / 1^st respondent has encroached nearly about 81 sq.ft. Therefore, necessity arose for him to file by way of counter claim that he want to declare his right over the said 81 sq.ft., which is under the encroachment of the plaintiff.

5. The learned counsel for the 1^st respondent / plaintiff in reply submits that if at all any encroachment was made by the plaintiff, at the time of disposal of the suit the court can pass suitable order based on the commissioner report, for that the first defendant cannot compel the court to entertain his counter claim, since the case is filed by the plaintiff. Admittedly, it is not the case of the first defendant that the plaintiff has encroached any of her portion. But on seeing the commissioner report she come forward with counter claim. If issues are framed, entertaining the counter claim is not mandatory one. To that effect he relied on the decision of Ashok Kumar Kalra Vs Wing CDR. Surendra Agnihotri and Others reported in (2020) 2 SCC 394, in which para 18 as extracted hereunder :

“18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter-claim, should adopt a balanced approach keeping in mind the object behind the amendment and to sub-serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counter-claim has to be filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counter- claim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the