Andhra Pradesh High Court - Amravati
Heard The Learned Counsel For The vs "21. We Sum Up Our Findings on 14 July, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO.: C.R.P.No.1654 of 2023
PROCEEDING SHEET
Sl. Date ORDER OFFICE
No. NOTE
1. 14.07.2023 RNT,J
1. Heard the learned counsel for the
revision petitioners/plaintiffs.
2. The plaintiffs filed O.S.No.99 of 2017
on the file of the learned Principal Senior Civil
Judge, Tirupathi. The issues were framed on
17.12.2018 after filing of the written statement
by the defendants. Thereafter, the 1st defendant
in the suit, who is the 1st respondent herein,
filed an application, which was numbered as
I.A.No.42 of 2023 (as per the submission, it
was filed on 22.11.2021).
3. The plaintiffs/revision petitioners
herein objected the said application but the
same has been allowed.
4. By the impugned order, dated
13.04.2023, the Court of the learned Principal
Senior Civil Judge, Tirupati has entertained the
counter claim petition. It is held that there is no
limitation for executing rectification or
correction deed and at any point of time, if a
mistake is found out and is transpired, a
rectification deed can be executed. However,
such factor is recommended to rectification of
mistake, if any, as seen, as the parties noticed
it, a fortiori, limitation is a mixed question of
law and fact, which shall be adjudicated in the
main case after full fledged trial. The trial Court
has entertained the counter claim, which is now
to be adjudicated in the main case after full
fledged trial.
5. Learned counsel for the revision
petitioners submits that the counter claim
should not be entertained, in any case, after
framing of the issues. In this respect, he relies
on the judgment of the Hon'ble Supreme Court
in the case of Ashok Kumar Kalra vs. Wing
Cdr, Surendra Agnihotri and others reported
in (2020) 2 Supreme Court Cases 394 and
in particular, para 21, which reads as under:
"21. We sum up our findings, that Order
VIII Rule 6A of the CPC does not put an
embargo on filing the counterclaim after
filing the written statement, rather the
restriction is only with respect to the
accrual of the cause of action. Having said
so, this does not give absolute right to the
defendant to file the counterclaim with
substantive delay, even if the limitation
period prescribed has not elapsed. The
court has to take into consideration the
outer limit for filing the counterclaim,
which is pegged till the issues are framed.
The court in such cases have the
discretion to entertain filing of the
counterclaim, after taking into
consideration and evaluating inclusive
factors provided below which are only
illustrative, though not exhaustive:
i. Period of delay.
ii. Prescribed limitation period for the
cause of action pleaded.
iii. Reason for the delay.
iv. Defendant's assertion of his right.
v. Similarity of cause of action between
the main suit and the counterclaim.
vi. Cost of fresh litigation.
vii. Injustice and abuse of process.
viii. Prejudice to the opposite party.
ix. and facts and circumstances of each
case.
x. In any case, not after framing of the
issues."
6. As per para 21, the Court has to take
into consideration the outer limit for filing the
counter claim, which is pegged till the issues
are framed, and under Clause x, "In any case,
not after framing of the issues".
7. The matter requires consideration.
8. Issue notice to the respondents.
9. In addition to the normal mode of
service, the petitioners are permitted to serve
notice on the respondents by registered post
with acknowledgment due and file proof of
service before the next date.
10. List the matter on 11.08.2023.
11. Till the next date of listing the
matter, regarding consideration of the counter
claim shall remain stayed.
12. It is made clear that the proceedings
of O.S.No.99 of 2017 on the file of the Principal
Senior Civil Judge, Tirupathi, are not stayed.
________
RNT, J
SPP/PND
