The High Court of Calcutta, while dismissing a petition filed for quashing an order dated December 5, 2022, passed by the learned Civil Judge vide which the learned court rejected a counterclaim filed by the defendants/petitioners, held that delay should not be a ground for rejection of a counterclaim and also that a counterclaim could be filed even after the filing of a written statement. However, the counter-claim should not be allowed mechanically, for the mere asking.
Brief Facts:
By the said counterclaim, the defendants wanted to introduce pleadings and prayers with regard to their share vide deed of partition. The contention was that the petitioners, in the written statement, had failed to raise a vital claim on the basis of the said deed, as the deed was not in their custody. After obtaining the deed from the proforma defendants, the same was shown to the learned Advocate through an intermediary and thereafter the defendants were advised to file a counterclaim by incorporating such facts and necessary prayers. The learned court rejected the counterclaim as the same was filed after the evidence commenced.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that only on the ground of delay, a counterclaim could not be rejected. The learned court ought to have gone into the merits of the counterclaim and held that such aspect was vital for a decision in the suit, as the corresponding shares of the petitioners in the suit property would be available from the deed of partition.
Observations of the court:
The court noted that counterclaim could be filed up to the stage of framing of issues, but could not be allowed to be filed after issues had been framed. In very exceptional situations, counter-claim can be filed after issues have been framed, but before evidence is recorded. The Courts may exercise discretion by accepting belated counter-claims in order to avoid a multiplicity of proceedings and a situation of effective retrial. Such relaxation has been given on the logic that between framing of issues and recording of evidence, suits do not progress much. The ground of delay is that the deed was not in the custody of the petitioners and as such, such defense was not taken in the written statement.
The Court observed that delay should not be a ground for rejection of a counterclaim and also that a counterclaim could be filed even after the filing of a written statement. However, the counter-claim should not be allowed mechanically, for the mere asking. The grounds for belated filing of the same would be relevant. A time-barred claim cannot be entertained under the guise of a counter-claim. However, as a general rule, a defendant cannot be permitted to file a counter-claim after the issues are framed and after the suit has proceeded substantially, even in cases when the claim may not be time-barred.
The decision of the Court:
The Calcutta High Court, dismissing the petition, held that the order shall not prevent the petitioners from proceeding with the cross-examination, strictly in accordance with law.
Case Title: Meheraj Mondal & Ors. v Niyamat Ali Mondal & ors.
Coram: Hon’ble Justice Shampa Sarkar
Case No.: C.O. No. 2588 of 2023
Advocate for the Petitioner: Mr. Partha Pratim Roy
Advocate for the Respondent: Mr. Bratin Kumar Dey
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