JUDGMENT

N.V. RAMANA, J.

1. Questions about procedural justice are remarkably persistent and usual in the life of Common Law Courts. However, achieving a perfect procedural system may be feasible or affordable, rather more manageable standards of meaningful participation needs to be aspired while balancing cost, time and accuracy at the same time.

Signature Not Verified

2. The present reference placed before us arises out of the order Digitaly signed by SATISH KUMAR YADAV Date: 2019.11.19

17:34:23 IST Reason:

dated 10.09.2018 passed by a two-Judge Bench of this Court, wherein clarification has been sought as to the interpretation of Order VIII Rule 6A of the Civil Procedure Code (hereinafter referred to as “the CPC”), regarding the filing of counter-claim by a defendant in a suit. The reference order dated 10.09.2018 is extracted below:

“.........

The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three-Judge Bench to look into the effect of our previous judgments as well as whether the language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature.”

(emphasis supplied)

3. Before we proceed further, we need to allude to the brief factual background necessary for the disposal of this reference. A dispute arose between the Petitioner (defendant no. 2) and Respondent No. 1 (plaintiff) concerning performance of agreement to sell dated 20.11.1987 and 04.10.1989. Respondent No.1 (plaintiff) filed the suit for specific performance against the petitioner (defendant no. 2) on 02.05.2008. Petitioner (defendant No.2) herein filed a written statement on 2.12.2008 and counter-claim on 15.3.2009, in the same suit. By order dated 12.05.2009, the trial court rejected the objections, concerning filing of the counter-claim after filing of the written statement and framing of issues. Order dated 15.05.2009 was challenged before the High Court, in Civil Revision No. 253 of 2009, the High Court allowed the same and quashed the counter-claim. Aggrieved by the aforesaid order of the High Court, the petitioner (defendant No.2) herein approached the Division Bench of this court, which has referred the matter to a three-Judge Bench.

4. The learned counsel appearing on behalf of the Petitioner submitted that the intent behind Order VIII Rule 6A of the CPC is to provide an enabling provision for the filing of counter- claim so as to avoid multiplicity of proceedings, thereby saving the time of the Courts and avoiding inconvenience to the parties. Therefore, no specific statutory bar or embargo has been imposed upon the Court’s jurisdiction to entertain a counter-claim except the limitation under the said provision which provides that the cause of action in the counter-claim must arise either before or after the filing of the suit but before the defendant has delivered his defence. The learned counsel also submitted that if permitting the counter-claim would lead to protracting the trial and cause delay in deciding the suit, the Court would be justified in exercising its discretion by not permitting the filing of the counter-claim. Relying on the judgments of this Court in Salem Advocate Bar Association, Tamil Nadu v. Union Of India, AIR 2005 SC 3353, and Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869, the learned counsel lastly submitted that rules of procedure must not be interpreted in a manner that ultimately results in failure of justice.

5. On the other hand, the learned Senior counsel for the respondent submitted that the language of the statute, and the scheme of the Order, indicates that the counter-claim has to be a part of the written statement. The learned senior counsel strengthened the above submission by relying on the statutory requirement that the cause of action relating to a counter-claim must arise before the filing of the written statement, and submitted that the counter-claim must therefore form a part of the written statement. The learned senior c