Bombay High Court

Ashok Shankar Sontakke And Anr vs Sharad Shankar Sontakke And Ors on 19 December, 2017

Bench: Dr. Shalini Phansalkar-Joshi

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION
               WRIT PETITION NO.2923 OF 2016


1. Ashok Shankar Sontakke                        ]
   age: 72 years, Occn. Business                 ]
   Residing at: 2nd floor, Sontakke Lodge        ]
   Kopari Road, Naupada, Thane                   ]
                                                 ] Petitioners
2. Mrs. Vaijayanti Kantilal Jage                 ] Original
   age:74 years, Occn. Housewife                 ] Plaintiff
   residing at Opp. Masjid, Wada                 ] Nos. 1 & 2.
   Taluka Wada, District: Palghar                ]
            V/s.
1. Sharad Shankar Sontakke                   ]
   age :61 years, Occn. Business             ]
                                             ]
2. Suresh Shankar Sontakke                   ]
   age: 58 years, ocn. Business              ]
                                             ]
3. Vinod Shankar Sontakke                    ]
    age: 53 years,Occn. Advocate             ]
                                             ]
Respondent Nos. 1 to 3 residing at           ]
House No.17/B, Sontakke House,               ]
Belapur Taluka, District: Thane              ]
                                             ]
4. Rvindra Shankar Sontakke                  ]
   age: 50 yrs, Occn.Service,                ]
   r/at Room No.8/10-2-3/2, Sector No.13     ]
   at & post New Panvel, Tal.Panvel          ]
   Distrrict: Raigad.                        ]
                                             ]
5. Shrikant Shankar Sontakke                 ] Respondents
   age:60 years, Occn. Nil, r/at Sontakke    ] (respondent
   House No.173, Belapur, Tal and Dist.Thane] Nos. 1 to 10
                                             ] Original
6. Surekha Jagdish Ambavane                  ] Defendants.
   Shankar Sontakke                          ]
   Age:63 yrs, Occn.Household,               ] Respondent
                  st
   r/at B-1/1-B 1 floor Sector No.1, Vashi,  ] No.11
   Navi Mumbai                               ] Original
                                             ] Plaintiff.


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 7. Sharda Shankar Sontakke                        ]
   age 83 yrs.occn.Household                      ]
   r/at House No.17/B Sontakke House,             ]
   Belapur Taluka and District,                   ]
                                                  ]
8. L.I.C. of India                                ]
   Murphy Towers, Eastern Express Highway]
   Thane 400 606                                  ]
                                                  ]
9. City and Industrial Development Corpn.         ]
   CIDCO Bhavan, CBD,Navi Mumbai, Belapur]
   Navi Mumbai 400 614.                           ]
                                                  ]
10. Sanjay Tukaram Punekar                        ]
    adult,Occn.Service, r/at : G-3, Om Gayatri Apt]
   Vijay Society, Garibacha Wada Road,            ]
   Mahatma Phule Road, Vishnu Nagar               ]
   Dombivali (W)                                  ]
                                                  ]
11. Mrs. Sarala Tukaram Punekar                   ]
    (since deceased through Lrs.)                 ]
                                                  ]
   11/1. Samir Tukaram Punekar                    ]
           age: 42 yrs, Occn.Service,             ]
                              st
           r/at Block No.101 1 floor,             ]
           Sector G-20, Belapur Road,             ]
           Navi Mumbai                            ]
                                                  ]
  11/2. Sudhir Tukaram Punekar                    ]
           age:46 years, occn.Service             ]
           r/at Devkutir Bldg No.2,               ]
          Dakshini Society Opp.Good Luck Hall ]
           Maninagar Ahmedabad, Gujarat           ]



Mr. Rajesh Sudhakar Datar a/w
Ms. Aditi Athawale, for the Petitioners

Mr. Sachin             P.       Shetye,   for   the
Respondents.



     CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.



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      CLOSED FOR ORDER : 14 th DECEMBER, 2017.

     JUDGMENT PRONOUNCED ON : 19 th DECEMBER, 2017

JUDGMENT :

1] Heard learned counsel for the petitioners and learned

counsel for the respondents.

2]          Rule.


3]          By consent of the parties rule is made returnable

forthwith.


4]          By this petition, filed under Article of 227 of the

Constitution of India, the petitioners are challenging the order

dated 17.12.2015, passed by the Joint Civil Judge, Junior

Division, Vashi, Navi Mumbai, below Exh.78 in R.C.S. No.489 of

2012, thereby allowing the counter-claim filed by defendant No.3

to be brought on record by way of amendment in his written

statement.

5] The submission of learned counsel for the petitioners is

to the effect that, the counter-claim can be permitted only if the

cause of action has arisen before filing of the suit or even after

filing of the suit, but, definitely, before the written statement is

filed or period for filing of written statement has expired. Here in

the case, it is submitted by him that the suit is filed long back in

the year 2003. Defendant No.3 has delivered written statement in

the said suit in the same month. However, the amendment

application to bring on record the counter-claim is filed on 25 th

August 2015; not only that, the cause of action for filing the

counter-claim is also mentioned to be, "26.6.2015" and therefore,

much after filing of the suit and even after filing of the written

statement and after the expiry of the period prescribed for filing

of written statement. In such situation, according to learned

counsel for the petitioners, when the counter-claim was not

satisfying the requisite condition laid down under Order VIII, Rule

6-A C.P.C., the trial Court should have, on this sole ground,

rejected the counter-claim. However, the trial Court has confused

the issue of limitation as to the cause of action raised in the

counter-claim and allowed the same by holding the issue of

limitation as mixed question of law. Hence, according to him, the

impugned order passed by the trial Court, being against the

express provisions of law, is required to be quashed and set aside.

6] Per contra, learned counsel for the respondents has

supported the said order by submitting that, the question as to

whether the counter-claim is barred by limitation or otherwise,

can be decided only after the counter-claim is allowed to be

brought on record by amendment; the issue of limitation being

the mixed question of facts and law, as held by the trial Court, it

needs to be adjudicated on the basis of evidence on record, which

will be adduced at the time of final hearing and, therefore, the

trial Court has rightly permitted amendment of the written

statement to bring on record the counter-claim.

7] Thus, the only issue raised for consideration in this writ

petition is, 'whether the counter-claim, the cause of action for

which has arisen, admittedly, as per the own case of the

defendant, after filing of the written statement, can be allowed to

be brought on record by way of amendment?'

8] In order to appreciate this controversy, the factual

aspects of this case, which are relevant for deciding it, can be

stated to the effect that, the respondents herein have filed suit

simplicitor for injunction and declaration in respect of the suit

property. The said suit was filed on 15.9.2003 against, in all, four

defendants. Defendant No.3 has appeared in the said suit and filed

written statement in the very same month in the year 2003 itself.

Thereafter, the suit was pending for appearance of defendant

No.10, who was joined in the suit as legal representative of

plaintiff No.3.

9] At this stage, on 25th August, 2015, that is after the lapse

of about 12 years from the date of filing of the suit and written

statement, defendant No.3 filed application for amendment in the

written statement in order to bring on record his counter-claim.

In the application for amendment, he has stated that his father

has made 'Will', bearing No.5324/90, on 11.9.1990 in favour of

defendant Nos.1 to 4 and that 'Will' is registered in the office of

the Sub-Registrar, Thane. On 13.2.2015, theft has taken place in

the house of defendant No.1. At that time, while making

panchnama in the house, son of defendant No.1 found receipt,

under which 'Will' of defendant No.1's father was found to be

registered. On the basis of that receipt, defendant had applied for

certified copy of the 'Will' on 9.6.2015 and obtained the same on

22.6.2015. In view of the said 'Will', by way of counter-claim, he

wants to claim rights in the suit property and a declaration that,

defendant Nos.1 to 4 are the owners of the suit property, in view

of the 'Will' of their father registered on 11.9.1990.

10] In paragraph No.30 of his application, he has

categorically stated that the cause of action for filing the counter-

claim has arisen on 22.6.2015, when certified copy of the 'Will'

was obtained by him from the Sub-Registrar of Assurance, Thane,

and the same is continued till filing of the counter-claim.

11] Thus, categorical statement is made in the application

that, the cause of action has arisen on 26.6.2015, that is much

after filing of the suit and also after filing of the written statement

in the year 2003 itself.

12] The relevant provision of Order VIII, Rule 6-A of Code of

Civil Procedure, which pertains to filing of counter-claim, reads as

follows :-

"6-A 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 delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not ;

[Emphasis Supplied]

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter- claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."

13] Thus, perusal of sub-rule (1) of Rule 6-A leaves no room

for any doubt that the cause of action, in respect of which counter-

claim can be filed, must accrue before defendant has delivered his

defence, namely, before defendant has filed his written statement.

14] The Hon'ble Supreme Court has, in the case of Vijay

Prakash Jarath -vs- Tej Prakash Jarath 2016 0 AIR (SC)

1304, confirmed this legal position by supporting itself on the

conclusions drawn in Bollepanda P. Poonacha and anr -vs.

K.M. Madapa (2208) 13 SCC 179; wherein it was observed, in

paragraph No.11, as follows :-

"11. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the

suit but before the defendant has raised his defence." [Emphasis Supplied]

15] Thus, it is clear that, the right to file counter-claim is an

additional right. It may be filed in respect of any right or claim.

However, the cause of action therefor must accrue either before or

after filing of the suit, but before the defendant has raised his

defence. In this reported case, in the application for amendment

of written statement, it was categorically stated that, the

appellant has trespassed on the land in question in Summer of

1998 and, therefore, the cause of action for filing counter-claim,

inter alia, was stated to have arisen at that time and hence, the

said application was held to be clearly not maintainable, in view of

cause of action having arisen after the written statement was

filed.

16] In the instant case in the hand also, defendant No.3 has

explicitly stated in the amendment application that, the cause of

action for filing counter-claim has arisen on 26.06.2015, that is

much after defendant No.3 has delivered his defence or filed his

written statement on 15.09.2003. In such circumstances,

requisite condition laid down in sub-rule (1) of Rule 6-A C.P.C. is

not at all satisfied. In such situation, needless to state that, the

counter-claim cannot be maintainable at all.

17] As held in the judgment of Vijary Prakash Jarath -vs-

Tej Prakash Jarath (supra), the counter-claim, no doubt, could be

filed even after the written statement is filed; however, for that

purpose, the cause of action for filing written statement must

have accrued before filing of the written statement or before the

date fixed for filing such written statement has expired. In the

present case, on own showing of defendant No.3, the cause of

action has accrued after the written statement was filed. Hence, it

was not maintainable.

18] As to the judgments relied upon by learned counsel for

the respondents in the case of Pradeep Kashinathrao

Kalyankar -vs- Pramod Kashinathrao Kalyankar (2017) 0 SC

(Mah), 963 and in the case of Ramniwas Bansilal Lakhotiya

(died) through Lrs, and anr -vs- Sunil Pannalal Agrawal and

others, (2015) (3) Mh. L.J. 283, the facts of both the cases

reveal that, the cause of action therein for filing counter-claim

was stated to have arisen before the written statement was filed

and much before institution of the suit and on that ground, it was

held that, the discretion exercised by the Trial Court in allowing

amendment to bring on record the counter-claim was justified.

The question, 'whether such counter-claim is barred by

limitation?', was left open to be considered in accordance with

law.

19] In the instant case, the own statement made by

defendant No.3 in the application, at his own peril, is that, the

cause of action for filing written statement has accrued on

26.6.2015, that is much after the written statement was filed in

the year 2003. Hence, the requisite condition laid down in sub-

rule (1) of Rule 6-A of Order VIII C.P.C., is not satisfied and hence,

the counter-claim is not tenable.

20] As rightly submitted by learned counsel for the

Petitioners, in this case, the question is not whether the counter-

claim raised by defendant No.3 is barred by Law of Limitation, but

the question is, 'whether the cause of action for filing counter-

claim has accrued before the statutory period, as provided by

sub-rule (1) of Rule 6-A of Order VIII of CPC', which stipulates

that, the cause of action should have accrued before filing of

written statement or before the period prescribed for filing of

written statement has expired. In this respect, the trial Court has

confused itself and, therefore, the impugned order passed by the

trial Court cannot be sustainable in law.

21] As observed by the Apex Court in the case of Vijay

Prakash Jarath (Supra) , belated counter claim must be

discouraged by the Court.

"Though the Court has, in such matters, wide discretion, it must, however, sub-serve the ultimate cause of justice. It may be true that, further litigation should be endeavoured to be avoided; it may also be true that, joinder of several causes of action in a suit is permissible, the Court must, however, exercise the discretionary jurisdiction in judicious manner. While considering that subservance of justice is the ultimate goal, statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, undoubtedly, would take into consideration the questions of serious injustice or irreparable loss, but, nevertheless, should bear in mind that a provision for amendment of pleadings is not available as a matter of right under all circumstances."

22] Here in the case, not only that the requisite condition

laid down in sub-rule (1) of Rule 6-A of Order VIII C.P.C. is not

satisfied, but, even the amendment in the written statement,

sought by way of counter-claim, is sought after a period of more

than 12 years. Issues are already framed in the suit on 5 th

September 2013. Hence, the bar of Proviso to Order 6 Rule 17

C.P.C., which is of a mandatory nature, is also clearly applicable in

the present case.

23] In such situation, on this additional ground also,

amendment in the written statement cannot be allowed; even on

the ground that, it will avoid multiplicity of proceedings. If the

condition laid down in sub-rule (1) of Rule 6-A of Order VIII and in