IMPORTANT POINT
The counter claim under Rule 6A of Order VIII, Civil Procedure Code, must find its place in the written statement and once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter claim can be allowed to be raised.

Headnote:(i) Rajasthan Co-operative Societies Act, 1965-Sections 75 and 137-Civil Court s jurisdiction-Exclusion of-Disputes which may be referred to arbitration-Suit for declaration of title as owner and seeking restoration of possession-It being not a dispute between parties referred to in clauses (a) to (e) of sub-section (1) of Section 75-Nature of dispute does not fall in clauses (a) to (c) of sub-section (2) of Section 75, therefore not excluded from domain of Civil Court. (Para 21)
       (ii) Civil Procedure Code, 1908-Order VIII Rule 6A as amended by Act No. 104 of 1976-Counter-claim-Stage for filing of-A pleading by way of counter claim runs with right of filing a written statement-Counter claim must necessarily find its place in written statement-Defendant s failure to file any written statement-He having forfeited his right of filing written statement-Trial Court was justified in not entertaining counter claim filed by defendant appellant-Purpose of defendant sought to be achieved by moving application under Order VIII Rule 6A was malafide-Defendant s prayer rightly rejected.
       Held : There are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court s time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of subsequent pleading as there is no previous pleading on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim. (Para 28)
       (iii) Civil Procedure Code, 1908-Order VII Rule 10-Suit for declaration as owner-Defendant alleged to be a rank trespasser, allegedly raising unauthorised construction over the property-Relief of specific performance is not a further relief to which plaintiff is entitled-Suit filed held, maintainable. (Para 33)
       (iv) Transfer of Property Act, 1882-Sections 54 and 53A-Suit for declaration as owner-Contract for sale of immovable property between plaintiff and owner of property-Defendant allegedly a trespasser-No pleading and no proof of defendant having any title to suit property-He could not have dispossessed plaintiff-Plaintiff held entitled to a declaration of his possessory title-Plaintiff s suit for specific performance of agreement to sell against the owner pending in Civil Court-Decree of declaration that plaintiff respondent is owner of suit property is set aside-It is declared that from 1-12-1985 to 8-2-1987, plaintiff was in peaceful possession of suit plot -Plaintiff is also entitled for mandatory and permanent preventive injunctions. (Paras 39 and 40)

JUDGMENT

R.C. Lahoti, J.-The present lis, having attained the age of 15 years by this time, is one harrowing tale of laws delays causing frustration in the mind of a suitor who deprived of his property rushed promptly to the Court for vindicating his rights and seeking protection under the arm of law. He faced adjournments and adjournments without any substantial progress at the trial in an over-burdened Trial Court, at the lowest rung of the judicial hierarchy, unable to spare such time as the individual cases demand so as to have a firm grip over the progress of each case. Several revisions taken to the High Court at interlocutory stages of the trial, too contributed to the delay, adding fuel to the fire of the plaintiff s agony. The record of tardy proceedings in the Trial Court, at least at the initial stage, reflects the defendant s impunity; he felt that he was beyond the reach of the law, though fortunately such hope of the defendant proved to be only a nightmare. The case has witnessed even contempt proceedings being initiated. Criminal cases too have germinated as off-shoot branches. We have heard the learned senior counsel for the appellant and the respondent appearing in person, controlling the proceedings firmly and with patience, so as to save them from drifting away towards initiation of yet other contempt proceeding. We told the respondent and the learned counsel for the appellant that we shall do justice, as duty bound we are, notwithstanding the fact that we feel hurt by the conduct of the plaintiff respondent, appearing in-person, and in our desire to do so we have not acceded to the prayer of the learned senior counsel for the appellant for withholding the hearing in the appeal until the contempt has been purged by the respondent as we felt that withholding the hearing in this appeal would only contribute to further frustration in the parties, add an undeserved length of life to an already old litigation, and may probably give rise to other off-shoot proceedings adding to the bulk of ever-mounting arrears of cases. The root cause of the dispute should first be resolved -we told the two, and that may probably, we hope, terminate the side issues as well. Happily we note, at the end of the hearing in appeal and the proceedings in contempt case that the respondent has felt genuinely repentant, withdrawn all his allegations constituting insinuation on which the contempt notice is founded and tendered an unconditional apology with folded hands craving for justice to be done in the main cause. The contempt proceedings we will deal with separately. This judgment determines the dispute as to civil rights between the parties fully and finally to the extent to which it can.

2. Anil Panjwani, the plaintiff-respondent, (hereinafter Panjwani - for short) filed a suit styled as a suit for declaration, possession and permanent injunction against Ramesh Chand Ardawatiya (defendant-appellant, Ardawatiya - for short). The plaint was presented on 9.2.1987 in the Court of Additional Munsif, Class I, Jaipur City, West Jaipur. The suit property is plot No. 2, area 273.03 square yards (61 6" X 40 ) described by boundaries in para 3 of the plaint. Briefly stated, the gist of the plaint averments is that on 1.12.1985 Panjwani entered into an agreement for purchase of the suit property for a consideration of Rs. 4500/- from one Shri Niwas Vaidhya, the then owner of the suit property. A document in writing was executed. Rs.4000/- were paid by way of earnest. Rs.500/- were to be paid at the time of registration. Original documents relating to the title of the vendor were passed on to Panjwani. On the date of agreement the plot was lying vacant. In December 1985 Panjwani constructed a boundary wall, desirous of raising construction on the plot in near future. On 8.2.1987, at about 4 p.m., when Panjwani had gone to inspect the plot, he found a mason raising a hutment and two women sitting there. On making enquiries, Panjwani learnt tha

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2003 Supreme(SC) 551

Cases Referred (7)