Shri. Dattatray Habaji Saykar ... vs Sunil Krishna Yervadekar And Ors
2021 Latest Caselaw 8519 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                      WRIT PETITION (STAMP) NO.9381 OF 2021

Dattatray Habaji Saykar (since
deceased through his legal heirs)
1. Smt. Surekha Dattatray Saykar
and Ors.                                                 ...Petitioners
                      Versus
Sunil Krishna Yervadekar and Ors.                      ...Respondents
                                 ....
Mr. Chaitanya Nikte with Ms Sneha Bhange for the Petitioners.
Ms Ujjwala Sawant for the Respondents.


                                        CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 28th JUNE, 2021.

P.C.:-

. Rule. With consent heard fnally at the stage of admission.

2. The Petitioners herein have challenged the order dated

03/02/2021 whereby the learned C.J.S.D., Pune, has permitted the

Respondents-Defendants to fle a counterclaim.

3. Mr. Nikte, learned counsel for the Petitioners submits that

the Trial Court has allowed the Respondents-Defendants to fle the

written statement after framing of the issues and after commencement

of Plaintiffs evidence. He has relied upon the decision of the Apex

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Court in Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and

Ors. (2020) 2 SCC 394 to contend that the Respondents-Defendants

cannot be permitted to fle the written statement after framing of the

issues.

4. Ms Sawant, learned counsel for the Respondents-

Defendants submits that the cause of action had accrued in the year

2017-2019. She further states that fling of counter-claim is to avoid

multiplicity of suits. She further states that the Defendant is of

advanced age and considering the circumstances, he was permitted to

fle counter-claim.

5. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

6. The records indicate that the Petitioners had fled the suit in

the year 2017 for specifc performance of an agreement dated

29/09/2006. The Defendants put in their appearance and fled written

statement. Issues were framed on 12/01/2012. The evidence of the

Plaintif was recorded on 09/07/2012. The Plaintif thereafter

examined another witness and while the matter was pending for

further evidence, defendant fled an application seeking leave to fle a

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counter-claim. The cause of action for seeking relief of mandatory

injunction, as averred in the counter claim, accrued with construction of

an unauthorized structure on 29/10/2017. The prayer in the counter-

claim is to demolish the said structure and to restrain the Plaintif from

creating third party rights in respect of the suit property, without

specifying the basis of such apprehension.

7. The cause of action as averred in the counter claim, had

accrued more than three years prior to fling of the counterclaim.

Furthermore, the counterclaim is sought to be fled after framing of the

issues and after commencement of the Plaintiffs evidence. In this

context, it would be advantageous to refer to paragraph 21 of the

decision in Ashok Kumar Kalra (supra) rendered by a three Judge

Bench of the Honfble Supreme Court on a reference to consider

amongst others, as to whether the language of Order 8 Rule 6-A of Civil

Procedure Code is mandatory in nature. In paragraph 18 and 21, the

Honfble Supreme Court has held thus :-

" 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to fle separate suit and see that the dispute between the parties is decided fnally. If the provision is interpreted in such a way, to allow delayed flling of the

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counter-claim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to fagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counter-claim has to be fled along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter-claim, should adopt a balanced approach keeping in mind the object behind the amendment and to sub-serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counter-claim has to be fled, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a defnite conclusion that by allowing the counter-claim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to fle counter-claim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC.

XXX...

21. We sum up our fndings, that Order 8 Rule 6-A CPC does not put an embargo on fling the counterclaim after fling 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 fle 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 fling the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain fling of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative,

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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. "

8. It would also be relevant to refer to paragraph 60 of the

judgment, wherein his Lordship Honfble Justice Mohan M.

Shantanagaudar, while partly supplementing and partly dissenting, has

observed thus :-

"60. Having considered the previous judgments of this Court on counter-claims, the language employed in the rules related thereto, as well as the intention of the Legislature, I conclude that it is not mandatory for a counter-claim to be fled along with the written statement. The Court, in its discretion, may allow a counter-claim to be fled after the fling of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the fling of a counter-claim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counter-claim may be permitted to be fled after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff. "

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9. The majority view is that the Court cannot exercise

discretion and entertain a counter-claim after framing of the issues. In

the instant case, as stated earlier, counter-claim is allowed to be fled

not only after framing of the issues but after commencement of

plaintiffs evidence. Permitting the Respondent to fle counter-claim

after framing of the issues and commencement of the evidence, is

contrary to the dictum of the Apex Court in Ashok Kumar Kalra (supra).

10. Hence, the Petition is allowed. The impugned order is set

aside. The counter-claim, if already taken on record, be returned to the

Defendant. Rule made absolute in above terms.

(SMT. ANUJA PRABHUDESSAI, J.)