Calcutta High Court (Appellete Side)
Nirmalendu Mishra Alias Jyotin ... vs Sri Swapan Raj And Others on 2 August, 2021
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.1115 of 2021
Nirmalendu Mishra alias Jyotin Mishra and others
Vs.
Sri Swapan Raj and others
For the petitioners : Mr. Sounak Bhattacharya,
Mr. Raghunath Das,
Mr. Sounak Mondal
For the opposite
party nos. 1 and 2 : Mr. Ashim Kumar Routh
Hearing concluded on : 22.07.2021
Judgment on : 02.08.2021
Sabyasachi Bhattacharyya, J:-
1.
This is a contest between two sets of defendants, the petitioners being
defendant nos. 5, 7, 24(ka) and 24(kha) and the opposite parties-
proforma defendant nos. 25 and 26 in the suit.
2. The dispute arises out of a suit for cancellation of a Deed of Exchange
dated November 10, 1983 and for recovery of possession in respect of
'ka' schedule property against the predecessor of defendant nos. 1 to
8. The opposite party nos. 1 and 2 were arrayed as proforma
defendant nos. 25 and 26 in the suit, bearing Title Suit No. 22 of
2003.
3. By the first impugned order, dated June 16, 2020, the trial court
accepted the belated written statement filed by the defendant nos. 25
and 26/opposite party nos. 1 and 2 on contest with costs of
Rs.9,000/. By the subsequent order dated March 9, 2021, the two
applications of the revisionist petitioners, both under Order VIII Rule
6-C of the Code of Civil Procedure, were rejected on contest and the
written statement, along with counter-claim, dated September 6, 2019
of opposite party nos. 1 and 2 was accepted.
4. Learned counsel for the petitioners contends that Order VIII Rule 6-A
of the Code of Civil Procedure contemplates only counter-claims
against the claim of the plaintiff. In the present case, the opposite
party nos. 1 and 2 have filed the counter-claim against the
defendants-petitioners as well. Such counter-claim against co-
defendants, it is argued, is not maintainable in law.
5. Learned counsel further contends that the counter-claim was ex facie
barred by limitation since the same was filed after about 17 years
from the date impugned in the counter-claim.
6. The show-cause of the opposite party nos. 1 and 2 as well as their
written statement were accepted after about 17 years' delay. It is
argued that the information of the suit, received by the advocate for
the opposite party nos. 1 and 2, was allegedly received after an order
was passed by this court, rejecting the plaintiff's application for
amendment of plaint under Order VI Rule 17 of the Code, seeking to
introduce a similar relief as sought in the counter-claim. Hence, the
opposite party nos. 1 and 2, being proforma defendants in the suit,
were set up by the plaintiffs to defeat the order of the High Court by
introducing a time-barred counter-claim.
7. Learned counsel for the petitioner further contends that it is evident
from the counter-claim that the cause of action therefor was the
'threat of dispossession' against the opposite party nos. 1 and 2,
which did not disclose any cause of action for the relief sought, that
is, recovery of possession. Hence, the trial court, it is argued, acted
without jurisdiction in accepting the belated written statement and in
rejecting the petitioner's application for exclusion of such counter-
claim.
8. Placing reliance on the judgment of Ananta Halder Vs. Haridashi
Halder and others, reported at 2019 (1) ICC 182 (Cal), wherein this
court had held, following a judgment of the Supreme Court and a
previous order of this court, that unless costs were condition-
precedent of the rest of the order, acceptance of costs would not
tantamount to estoppel debarring the person accepting cost from
challenging the said order, learned counsel contends that the costs
granted by the first impugned order was received by the advocate
appearing for the petitioners in the court below erroneously, without
taking proper instruction from his clients, which would not, ipso
facto, debar the petitioners from preferring the instant challenge, since
costs were not a pre-condition of accepting the written statement.
9. By placing reliance on Estate Officer, Haryana Urban Development
Authority and another Vs. Gopi Chand Atreja, reported at (2019) 4 SCC
612, learned counsel for the petitioner argues that the Supreme Court
categorically laid down the law that the failure of the lawyer to take
timely steps, resulting in causing delay, cannot be recorded as a
sufficient cause within the meaning of Section 5 of the Limitation Act
and it was equally the duty of the appellants to see that the appeal be
filed in time.
10. Next citing Kailash Vs. Nanhku and others, reported at (2005) 4 SCC
480, learned counsel for the petitioner submits that ordinarily the
time-schedule prescribed by Order VIII Rule 1 of the Code has to be
honoured and the defendant should be vigilant. Extension of time
sought by the defendants for filing written statement can only be by
way of exception and for reasons assigned by the defendant and also
recorded in writing by the court to its satisfaction. Hence, it was held
by the Supreme Court that a prayer seeking time beyond the statutory
limitation for filing written statement ought to be made in writing and
the court may, indeed, put the defendants on terms, including
imposition of compensatory costs, etc.
11. Learned Counsel next places reliance on Rohit Singh and others Vs.
State of Bihar (Now State of Jharkhand) and others, reported at AIR
(2007) SC 10, in support of the proposition that maintainability of a
counter-claim under Order VIII Rule 6-A was in question in case the
counter-claim contained therein was against co-defendants.
12. In reply, learned counsel appearing for the opposite party nos. 1 and 2
argues that, at the stage of accepting the written statement and
entertaining the counter-claim, the court cannot go into the merits of
the counter-claim.
13. As far as the first impugned order is concerned, the trial court
exercised its judicial discretion to accept the written statement on the
reasons given in the said order, upon imposing substantial costs of
Rs.9,000/- on the opposite party nos. 1 and 2, which were accepted
by the advocate for the said opposite parties in the court below.
Hence, there is no scope of reopening of such order in revision.
14. The petitioners, it is argued, accepted the first impugned order by not
challenging the same till the second impugned order was passed. As
such, the first impugned order attained finality prior to filing of the
revisional application.
15. That apart, learned counsel argues, Order VIII Rule 6-C of the Code
can only be filed by plaintiffs and not co-defendants as done in the
present case by the revisionist-petitioners. As far as the proposition,
that no counter-claim is maintainable against co-defendants, it is
argued that, in the present case, the reliefs in the counter-claim are
directed not only towards the co-defendants but also the plaintiffs,
which validates such a counter-claim.
16. Upon considering the submissions of the parties, it is evident from a
plain reading of Order VIII Rules 6-A to 6-G of the Code, in particular
sub-Rule (4) of Rule 6-A, that the counter-claim shall be treated as a
plaint and governed by the rules applicable to plaints. It is well-
settled that a counter-claim has to be decided independently of the
suit and has the trappings of an independent suit. Thus, the
provisions of Order VII Rule 11 of the Code, which are applicable to
amendment of plaints, are also applicable to counter-claims.
17. Rule 11(d) stipulates that the plaint shall be rejected where the suit
appears from the statement in the plaint to be barred by any law. In
the present case, the counter-claim made against the plaintiffs,
challenging the deed executed by the plaintiffs on November 10, 1983
and the consequential relief of declaration of 1/8th share of the
counter-claimants are palpably time barred.
18. That apart, in view of the said relief challenging the deed-in-question
by a previous order dated August 14, 2019 passed by this court in
C.O. No. 2720 of 2019, rejecting the amendment of the plaintiff in
similar terms applying the proviso to Order VI Rule 17, the
incorporation of the same relief by way of a counter-claim would be
palpably barred. It is evident that the relief sought in the counter-
claim against the plaintiffs is not only time-barred but specifically
designed to defeat the order passed by this court in C.O. No. 2720 of
2019, rejecting such amendment.
19. Hence, the relief sought against the plaintiffs is palpably illusory.
20. That apart, the prayer for recovery of possession, sought against the
co-defendants, which is the only relief remaining in the event the first
two reliefs against the plaintiffs are negated, was claimed only against
co-defendants. Since such prayer, in view of the first two prayers
against the plaintiffs being patently time-barred, assumes the
character of the main relief claimed in the counter-claim, such
counter-claim is rendered to be solely against the co-defendants, thus,
not maintainable. That apart, no cause of action for the relief of
recovery of possession against the defendants is disclosed in the
counter-claim in so far as paragraph 4 thereof categorically pleads
that the revisionist petitioners merely threatened the counter-
claimants/opposite party nos. 1 and 2 to dispossess from the suit
property. The threat of dispossession is not equivalent to
dispossession and, as such, is not a cause of action at all, rather
contrary, to the relief of recovery of possession claimed against the
defendants.
21. What the plaintiffs could not achieve directly in view of rejection of
their similar amendment application previously, they sought to claim
indirectly by setting up the opposite party nos. 1 and 2, who claimed
such relief, which was already refused to be incorporated by this
Court, in the garb of the counter-claim of recovery of possession
against the defendants. It is well-settled that, what cannot be directly
granted in law cannot be obtained indirectly. Hence, the effort of the
opposite party nos. 1 and 2 to insert the relief of recovery of
possession against the co-defendants is an oblique and mala fide
attempt to defeat the previous order of this court.
22. The counter-claim against the plaintiffs is a sham relief claimed
merely to by-pass the rejection of the same prayer in the form of
amendment sought by the plaintiffs previously by this court and is
patently time-barred.
23. The relief sought against the co-defendants/petitioners, thus,
becomes the sole primary relief claimed in the counter-claim,
independent of the reliefs claimed against the plaintiffs, which renders
the counter-claim non-maintainable in view of the specific language of
Order VIII Rule 6-A, which stipulates that counter-claims can be filed
only against the plaintiffs.
24. As far as the applicability of Order VIII Rule 6-A of the Code is
concerned, the subsequent application for exclusion of the counter-
claim by the petitioners, although not maintainable in law, loses
relevance in view of the acceptance of written statement itself being
patently illegal and amounting to permit an ex facie time-barred relief
to be incorporated by way of counter-claim. Such an effort ought to
be nipped in the bud, as held by the Hon'ble Supreme Court in the
context of rejection of plaints.
25. As far as the acceptance of costs by the advocate of the petitioners in
the court below is concerned, it is evident from the first impugned
order, bearing Order No.87 dated June 16, 2020 that the said cost
was not a condition precedent for acceptance of the show-cause and
the written statement filed by the opposite party nos. 1 and 2. The
language of the said order clearly shows that the costs were directed
over and above such acceptance. In fact, the impugned order dated
June 16, 2020 reveals clearly that the trial court directed only the
hearing of the petition under Order VIII Rule 6 of the Code of Civil
Procedure after payment of such costs. Such stipulation is not a
condition precedent for accepting the written statement or the show-
cause for late filing of the same but was merely to precede the hearing
of the Order VIII Rule 6 applications. Thus, the acceptance of such
costs by the advocate for the petitioners in the court below cannot,
ipso facto, preclude the petitioners from preferring the instant
challenge.
26. However, for the ends of justice, such costs ought to be returned to
the opposite party nos. 1 and 2 in view of this Court being of the
opinion, on the grounds as discussed above, that Order No.87 dated
June 16, 2020 was passed without jurisdiction.
27. Accordingly, C.O. No.1115 of 2021 is disposed of setting aside Order
No.87 dated June 16, 2020 passed by the Civil Judge (Junior
Division), Second Court at Contai, District- Purba Medinipur in Title
Suit No. 65 of 2013 and expunging the written statement and
accompanying counter-claim filed by the opposite party nos. 1 and 2
from the records of the suit. As far as the second impugned order,
bearing Order No.95 dated March 9, 2021, is concerned, in view of
the rejection of the counter-claim, such rejection becomes academic
and irrelevant. Thus, no further order need be passed in respect of
the second impugned order. The petitioners shall refund the costs of
Rs.9,000/- , received by their advocate in the court below, to the
opposite party nos. 1 and 2, directly or through the latter's advocate
in the court below, within one week from date as a pre-condition of
this order. In default of such payment within the stipulated period,
this order shall stand automatically vacated, without further reference
to court.
28. There will be no order as to costs.
29. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
