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CASE NO.:

Appeal (civil) 1959 of 2008

PETITIONER:

Bollepanda P. Poonacha & Anr

RESPONDENT:

K.M. Madapa

DATE OF JUDGMENT: 13/03/2008

BENCH:

S.B. SINHA & V. S. SIRPURKAR

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 1959 OF 2008

(Arising out of SLP(C) No. 11131 of 2007)

S.B. SINHA, J.

1. Leave granted.

2. Whether a counter claim is permissible to be filed after filing of a

written statement, is the core question involved herein.

3. Appellant filed a suit against the respondent claiming title and

possession over the property in suit. Their names were mutated in the

revenue record of rights. Respondents had filed a suit against the appellant

which was marked as O.S. No. 67 of 1996. An order of interim injunction

was passed therein on the premise that he under the garb of ex-parte interim

injunction started making attempts to interfere with the possession of the

appellant in the scheduled properties.

4. O.S. No. 54 of 1997 was filed in the Court of Civil Judge, Senior

Division at Virajpet on 19.2.1997. Respondent filed a written statement on

21.3.1997 contending that he had purchased the said properties in terms of

an order passed by the Assistant Registrar of Cooperative Societies, Kodagu,

Madikeri.

5. On or about 4.1.2006, inter alia on the premise that the plaintiffs have

dis-possessed the respondents in the year 1998, an application for leave to

file counter claim was filed. In the said counter claim, it was contended that

the land bearing Survey No. 61/1 had fallen to his share in a partition of the

family properties in 1980 and 1986 and the remaining land was purchased

by him in a public auction. The cause of action for filing the said counter

claim was said to have arisen on 19.2.1997, when the suit was filed and in

the end of summer of 1998 when the plaintiff tresspassed and encroached

upon the lands belonging to them. In the application for amendment of the

written statement, a prayer was made for passing a decree of recovery of

possession of the suit land stating;

"Pass a judgment and decree against the plaintiffs

declaring that the defendant is the absolute owner

of the written statement schedule ’A’ properties

and direct the plaintiffs to vacate and deliver

possession of the schedule ’B’ properties to the

defendant and the same be ordered to be delivered

by a fixed date and on default; the same shall be

delivered to the defendant by the due process of

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the court.."

The said application has been allowed by the learned Civil Judge by

an order dated 12.10.2006, opining that the cause of action for filing the said

counter claim arose prior to filing of the written statement.

Revision application filed by the appellant has been dismissed by the

High Court by reason of the impugned judgment.

6. Mr. Dayan Krishnan, learned counsel appearing on behalf of the

appellant submitted that filing of a counter claim where cause of action arose

after filing of the written statement is impermissible under Order 8 Rule 6A

of the Code of Civil Procedure.

7. Mr. Girish Ananthamurthy, the learned counsel appearing on behalf of

the respondent, however, urged that with a view to avoid unnecessary

litigation, the view taken by the learned Civil Judge as also the High Court

cannot be said to be wholly impermissible in law.

8. Order VIII Rule 6A of the Code of Civil Procedure reads as under;

6A. Counter-claim by defendant - (1) A defendant

in a suit may, in addition to his right of pleading a set-

off under rule 6, set up, by way of counter-claim

against the claim of the plaintiff, any right or claim in

respect of a cause of action accruing to the defendant

against the plaintiff either before or after the filing of

the suit but before the defendant has delivered his

defence or before the time limited for deliver