Sri Sukdev Saha Alias Sukdeb Saha vs Sri Tusher Kanti Sengupta
2021 Latest Caselaw 3128 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       CIVIL REVISIONAL JURISDICTION
                               APPELLATE SIDE


Present:

Hon'ble Justice Shampa Sarkar



                            C.O. No. 490 of 2021

                     Sri Sukdev Saha alias Sukdeb Saha
                                      vs.
                          Sri Tusher Kanti Sengupta


For the petitioner                 : Mr. Purnasish Gupta,
                                    Ms. Mary Dutta.

For the opposite parties           : Mrs. Sohini Chakraborty,
                                     Mr. Suvadip Bhattacharya.


Hearing concluded on: 27.04.2021
Judgment on: 03.06.2021


Shampa Sarkar, J.:-


1.

The revisional application arises out of an order dated December 16,

2020 passed by the learned Civil Judge (Junior Division), Bidhannagar, in

Title Suit No.63 of 2019. The petitioner is aggrieved by the portion of the

order by which the application under Order VI Rule 17 read with Section

151 of the Code of Civil Procedure dated October 5, 2020 filed by the

defendant was allowed on contest. The petitioner contended that the

counter-claim sought to be incorporated in the written statement by way of

an amendment of the written statement was not maintainable in the eye of

law. Thus such portion of the order impugned suffered from jurisdictional

error.

2. The first contention of the petitioner was that the counter-claim was

not properly valued. The first prayer for declaration in the counter-claim

that the defendant was entitled to get recovery of possession, was barred by

law, in view of the fact that a relief for declaration without any prayer for

recovery of possession was hit by the proviso to Section 34 of the Specific

Relief Act, 1963. It was further contended that had the reliefs in the

counter-claim been correctly stated and valued, the learned Civil Judge

(Junior Division) Bidhannagar would not have the pecuniary jurisdiction to

decide the said suit and the counter-claim. Learned Advocate for the

petitioner further submitted that the counter-claim could not be entertained

in view of the fact that the defendant could not have valued the counter-

claim as one for eviction of a trespasser but as a suit for eviction of a

licensee, when admittedly, the defendant had acknowledged throughout the

body of the written statement that the plaintiff was a licensee. The counter-

claim was under-valued and the prayers were also barred by law. Learned

Advocate for the petitioner relied on the following decisions:- Mehar Chand

Das vs. Lal Babu Siddique & Ors. reported in (2007) 14 SCC 253,

Nellimarla Jute Mills Company Ltd. vs. Rampuria Industries and

Investments Ltd. reported in CAL LJ 2000(2) 70, Union of India vs.

Ibrahim Uddin & Anr., reported in AIR (SC)(Civ) 1571 and Vinay Krishna

vs. Keshav Chandra and Anr., reported in 1993 Supp 3 SCC 129.

3. Mrs. Sohini Chakraborty, learned Advocate appearing on behalf of the

opposite party submitted that at the time of consideration of the amendment

of the written statement for incorporation of the counter-claim, the learned

Court was not required to go into the merits of the counter-claim. The

amendment was rightly allowed in order to avoid multiplicity of proceedings

as the issues involved in the plaint and the counter-claim could be disposed

of in one suit. She further submitted that, whether the counter-claim was

barred by law or whether the learned trial court had lost its pecuniary

jurisdiction to try the suit and the counter-claim, were issues to be decided

at a later stage and the petitioner was always at liberty to raise these

objections in the written statement to be filed in response to the counter-

claim. She further submitted that the suit was one for eviction of a

trespasser as the licence granted to the petitioner was neither revoked nor

terminated. Her contention was that the licence expired due to efflux of

time and the petitioner continued to reside in the premises as a trespasser

without handing over possession of the suit property even after the period of

leave and license had expired. She further submitted that the provisions of

The Suits Valuation Act, 1887, could be invoked by the learned Court below,

if the petitioners raised the point of pecuniary jurisdiction or under-

valuation, at the appropriate stage. She relied on the decision of Ramesh

Chand Ardawatiya v. Anil Panjwani reported in (2003) 7 SCC 350 in order

to urge that it was a well settled principle of law that a counter-claim could

be filed by way of an amendment of the written statement and in this case,

there was no illegality or material irregularity on the part of the learned

Court below in allowing such amendment. She urged that the learned Court

by enabling both the parties to place their claim and counter-claim could

adjudicate their respective contentions in the same judicial proceedings

which would save judicial time. The said counter-claim was filed at an early

stage of the suit and as such, the defendant could not be barred under any

law from incorporating the counter-claim, by way of an amendment. She

submitted that the merits of the counter-claim would be decided later. She

also relied on the decision of Rajesh Kumar Aggarwal and Ors. vs. K.K.

Modi and Ors., reported in (2006) 4 SCC 385, in support of her contention

that Courts should allow amendments that may be necessary for

determining the real question in controversy between the parties, provided it

did not cause injustice or prejudice to the other side. The Court should not

go into the correctness of the amendments and was not required to record a

finding on the merits of the amendment at the stage of considering the

prayer for amendment. She submitted that if it was permissible for a party

to file an independent suit on the same cause of action, in such event, a

counter-claim should be allowed. Thus the learned Court was within its

jurisdiction to allow the amendment in this case.

4. I have heard the contentions of the respective parties. Right to file a

counter-claim is an additional right. The counter-claim must have nexus

with the suit. The defendant must have an independent cause of action in

the nature of a cross action.

5. In this case, the application for amendment of the written statement

for incorporation of the counter-claim was filed at an early stage of the suit.

The counter-claim is a cross suit. The petitioner/plaintiff will get an

opportunity to file a written statement to the counter-claim and raise all the

objections, which have been raised now. The petitioner may also file

appropriate applications raising such contentions at an appropriate stage,

as per law. Moreover, the learned Court will decide the merits of the suit in

the plaint as also the counter-claim including the point of jurisdiction,

valuation and maintainability. In this case, the plaintiff filed a suit for

declaration that he was a monthly tenant under the defendant and was

entitled to use the suit premises until he was evicted by due process of law.

The plaintiff also prayed for further declaration that the defendant did not

have any right to interfere with the possession of the plaintiff with regard to

the suit property. A prayer for permanent injunction was also made for an

order restraining the defendant from disturbing or dispossessing the

plaintiff from the suit property and from causing wastage and damage to the

plaintiff's peaceful enjoyment of the suit property.

6. The defendant contested the said suit by filing a written statement. In

the written statement, it was the specific contention of the defendant that

the plaintiff was initially a licensee and was permitted to reside in the suit

property for a period of 11 months under a leave and licence agreement. The

licence fee was Rs.5000/- per month. Thereafter, the said leave and licence

agreement was renewed from time to time. The plaintiff had earlier failed to

pay the licence fee for the month of September, 2016. At the request of the

plaintiff, the leave and licence agreement was again renewed on February 1,

2017. The plaintiff continued to default in payment of the licence fee and on

expiry of the term contained in the last agreement dated February 1, 2017,

the defendant did not renew the lease and licence agreement and the

plaintiff agreed to hand over vacant possession and also to pay the

outstanding licence fees. The plaintiff failed to hand over vacant possession

and the defendant lodged a complaint with the police. The defendant denied

the allegations of the plaintiff that the defendant along with 10 rowdy people

entered the premises and threatened to slaughter the plaintiff.

7. Thereafter the defendant filed the application for amendment in order

to incorporate the counter-claim. It was the further contention of the

defendant that after expiry of the last leave and licence agreement dated

February 1, 2017, the defendant had neither renewed nor terminated the

leave and licence agreement. It was also the defendants' case that the

plaintiff had also started structural addition, alteration and demolition

without any permission and that the plaintiff was a trespasser as the leave

and licence agreement had expired long ago. Accordingly the written

statement was required to be amended in order to incorporate the counter-

claim for the reliefs sought for with regard to the alleged illegal occupation of

the suit property by the plaintiff. It is an admitted position that the counter-

claim was filed at the stage of hearing of the interlocutory applications and

issues had not been framed. There was no delay in filing the amendment for

incorporation of the counter-claim. The contentions of the defendants arise

out the self-same property in respect of which a suit is already pending. The

cause of actions are connected. The counter-claim is a cross-action in this

case.

8. With regard to the contention of the petitioner that the prayer for

declaration in the counter-claim could not be allowed without a prayer for

recovery of khas possession, this Court is of the opinion that the merits of

the Counter-claim will be decided at a later stage. The counter-claim will be

adjudicated as a cross suit and issues will also be framed as to

maintainability of the same.

9. All points including the bar under proviso to Section 34 of the Specific

Relief Act will be decided at the trial or at the appropriate stage when the

petitioner invites the learned Court to decide such issues. Secondly, the

question of valuation of the suit jurisdiction of the Court etc. can also to be

decided at a later stage and the learned Court can embark upon on an

enquiry at an appropriate stage, but the learned Court cannot be called

upon to decide the merits of the counter-claim at the stage of consideration

of the application for amendment of the written statement. This is a suit for

declaration of tenancy and permanent injunction filed by the petitioner. The

opposite party/defendant being the landlord has filed a counter-claim

against the plaintiff who according to the defendant was a trespasser. Now

the question as to whether the defendant was entitled to get a decree on the

basis of the prayers as made in the counter-claim is not to be decided at the

stage of filing of the counter-claim. The merits of the counter-claim will be

decided at the appropriate stage and the plaintiff/petitioner will be free to

raise all such objections in his written statement to the counter-claim and

also by filing appropriate applications if permitted by law. The order allowing

the amendment is justified. Multiplicity of proceedings can be avoided and

the parties will be able to get their rival claims adjudicated in one

proceeding which would save judicial time and expenditure.

10. All points raised by the plaintiff/petitioner are left open for the learned

trial judge to consider at the appropriate stage. The decisions cited by the

learned Advocate for the petitioner are not dealt with as they are with regard

to the merits of the prayers in the counter-claim which need not be

addressed now in view of the aforesaid discussions.

11. Under such circumstances, the revisional application is disposed of.

There shall be no order as to costs.

12. Time to file amended written statement is extended by a period of one

month from date (if not already filed) and be served upon the plaintiff.

Thereafter the learned Court below shall proceed with the matter by passing

appropriate directions in accordance with law upon granting liberty to the

petitioner to file the written statement to the counter-claim.

Urgent Photostat Certified Copy of this judgment, if applied for, be

given to the parties, on priority basis.

(Shampa Sarkar, J.)