Jayant Kumar Mukharji vs Smt. Sharmistha Devi
2022 Latest Caselaw 6681 Chatt

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                                                                                AFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                              W.P. (227) No.670 of 2022
     Jayant Kumar Mukharji S/o S.K. Mukharji Aged About 58 Years Occupation
     Service Development Officer Life Insurance Corporation R/o House No.
     38/198 Atal Bihari Vajpayee Ward /marg Dharampura No. 01 Jagdalpur
     District Bastar Chhattisgarh (Respondent)

---- Petitioner Versus Smt. Sharmistha Devi W/o Jayant Mukharji Aged About 35 Years Caste Bangali Brahman R/o House No. 38/198 Atal Bihari Vajpayee Ward Dharampura No. 01. Jagdalpur District Bastar Chhattisgarh (Plaintiff)

----Respondent

For the Petitioner: Shri Vikash A Shrivastava, Advocate.

Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 09.11.2022

1. This Petition has been filed challenging the order dated 01.10.2022

passed by the learned Family Court, Jagdalpur in Civil Suit No.5-A/2021,

whereby the application filed under Order 8 Rule 6 CPC by the Petitioner herein

was dismissed.

2. Shri Shrivastava, learned Counsel for the Petitioner submits that the

learned Family Court has not applied the dictum of the principles laid down in the

matter of Ashok Kumar Kalra v. Surendra Agnihotri reported in (2020) 2 SCC 394

in which it was held that in exceptional circumstances, a counter claim may be

permitted to be filed after a written statement till the stage of commencement of

recording of the evidence on behalf of the plaintiff as the trial has not

commenced, therefore, to prevent multiplicity of proceedings, the application

ought to have been entertained in the interest of justice and the impugned order

is contrary to the principles of law, which deserves to be quashed.

3. Heard learned Counsel for the Petitioner and perused the documents

annexed with the Petition with utmost circumspection.

4. In Ashok Kumar Kalra v. Surendra Agnihotri (supra), the question was

referred for clarification as to the interpretation of Order 8 Rule 6-A of the CPC

regarding the filing of counterclaim by a defendant in a suit and finally it has been

settled that the defendant cannot be permitted to file 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 CPC.

Finally, in para-21 of the said judgment, it has been held that counterclaim be

entertained in any case, not after framing of the issues.

5. In view of above, the approach adopted by the learned Family Court

cannot be stated to have suffered from any infirmity so as to call for intervention

at the hands of this Court in a Petition under Article 227 of the Constitution of

India.

6. Accordingly, the Petition is dismissed at the motion stage itself.

Sd/-

(Deepak Kumar Tiwari) Judge Priya