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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 19^th February, 2020

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CM(M) 1418/2018 and CM APPL. 48588/2018

SANJIV TIWARI ..... Petitioner

Through:

Mr. Sanjay Kumar Viseh and Mr.

Arvind K. Sharma, Advocates (M:

9899980152).

versus

DEEPAK POPTANI ..... Respondent

Through:

Mr. Aditya Rathee, Mr. Rohan

Dewan and Ms. Archana Saxena,

Advocates (M: 9810120000).

CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This petition raises an important question as to whether the counter-

claim filed by the Defendant/Respondent (hereinafter, “Defendant”) after

the commencement of the evidence of the Plaintiff/Petitioner (hereinafter,

“Plaintiff”) can be permitted or not.

2. A suit for recovery of Rs.19,44,073/- was filed by the Plaintiff – Mr.

Sanjiv Tiwari against Mr. Deepak Poptani in 2013 under Order XXXVII

CPC before the District Judge, Saket Courts Complex. The leave to defend

application was filed by the Defendant in the suit, however, the suit was

withdrawn with liberty to refile the same vide order dated 21^st January,

2015, which reads as under:-

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3. Thereafter, the present suit has been instituted before the District

Judge, Tis Hazari Courts on 19^th September, 2015, again under Order

XXXVII CPC. The suit, though filed under Order XXXVII CPC, is stated to

have been treated as an ordinary suit. The written statement was filed on 3^rd

March, 2016. The following issues were framed on 16^th July, 2016:

4. Relief”

4. Thereafter, the Plaintiff filed his affidavit-in-evidence and the cross-

examination of PW-1 has commenced in the suit. The Defendant’s right to

cross-examine the Plaintiff’s witnesses was closed on 25^th May, 2017,

however, on 6^th November, 2017, this Court allowed the Defendant’s

application for recall of order dated 25^th May, 2017, subject to costs of

Rs.4,000/-.

5. The Defendant’s counter-claim for a sum of Rs.56,41,129/- was filed

on 29^th November, 2017. The Plaintiff took an objection that the said

counter-claim was not maintainable and accordingly filed an application

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under Order VII Rule 11 CPC seeking rejection of the counter-claim.

6. Vide the impugned order dated 26^th September, 2018, the said

application has been dismissed and the counter-claim has been taken on

record.

7. A perusal of the impugned order shows that the Trial Court relied on

the Supreme Court’s judgment in Vijay Prakash Jarath vs. Tej Prakash

Jarath [SLP (C) Nos. 8536-37, decided on 1^st March, 2016]. The

observations of the Trial Court are as under:

2020:DHC:1250

2020:DHC:1250

merits and the same is hereby dismissed.”

8. The contention of ld. counsel for the Plaintiff is that in view of the

recent judgment of the Supreme Court in Ashok Kumar Kalra v. Surendra

Agnihotri and Ors., 2019 (16) SCALE 544, the counter-claim is not

maintainable, as the same has been filed after the framing of issues and after

the commencement of the Plaintiff’s evidence. Reliance is placed on

paragraphs 16 to 20 of the said judgment, as also the concurring opinion in

paragraphs 43 to 46.

9. Ld. counsel further submits that the counter-claim is also barred by

limitation as the first notice was issued by the Plaintiff in 2013, to which a

reply was sent by the Defendant, but the counter-claim has only been filed in

2017. In any event, it is submitted that the settled legal position, as per the

judgment in Ashok Kumar Kalra (Supra), is now a binding precedent which

2020:DHC:1250

does not permit the filing of a counter-claim after the commencement of

recordal of evidence.

10. On the other hand, Mr. Asutosh Lohia, ld. counsel appearing for the

Defendant submits that the concurring opinion in Ashok Kumar Kalra

(Supra), especially paragraph 44, shows that even after co