Bentals Corporation Ltd. vs Smt. Kamlesh Rani
2006 Latest Caselaw 207 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the orders of the Additional District Judge, Delhi, dated 28.4.2005 and 3.5.2005 whereby the learned Judge has, in his order, while disposing of a review, gone into details to show that the written statement filed by the petitioner cannot be termed as counter- claim and thereby dismissed the review petition.

2. It is contended by counsel for the petitioner that on a bare reading of the written statement, the background stated therein and the prayer made at (c) together with the averments in paragraph (10), makes out a case of the petitioner by way of a counter-claim. He submits that the pleadings therein are sufficient and, therefore, ought to have been treated as a counter-claim and a plaint as such. Deficiency in court fee would have been made with under Order 7 Rule 11(c) CPC. In support of his arguments, he relies upon a judgment of the Karnataka High Court in Smt. Parvathamma v. K.R. Lokanath and Ors. .

3. Counsel for the respondent, on the other hand, contends that the written statement cannot be treated as a counter-claim since nowhere has the claim been evaluated nor has any court fee been paid nor permission sought to pay the same. He also submits that no portion of the written statement can be bifurcated to bring about a plaint sufficient in requirements to maintain a suit. He also submits that in the event the written statement being treated as counter-claim, it has to comply with the provisions of Order 8 Rule 6A CPC.

4. I have heard counsel for the parties and have, with great care, gone through the judgment under challenge as also the written statement which, counsel for the petitioner submits, is a counter-claim. According to me, it appears that in the written statement, the statements made under the caption Background are sufficient to give an indication as to what is the nature of the counter-claim that is being made by the petitioner in his written statement. Prayer (c) to the written statement is a direct indication that the written statement is also filed by way of a counter claim. However, it is true that no court fee has been paid nor any permission was sought to pay the same. Yet I am of the opinion that in a situation like this, the proper course for the court to have adopted was to proceed under Order 7 Rule 11(c) CPC and require of the petitioner to pay the requisite court fee. Had he not done so within the period prescribed, the court would have been well within its right to reject his claim.

5. In that view of the matter, while holding that the written statement contains a counter-claim, it would be open to the respondent herein to file his written statement to the counter-claim and take all objections, both in law and fact, as may be available to him. I am also of the opinion that the judgment of the Karnataka High Court, referred to by learned counsel for the petitioner, covers his case. Accordingly, the order under challenge is set aside and C.M. (M) 1736/2005 is allowed. In view of my findings above, the petitioner is directed to pay the requisite court fee on or before the next date of hearing before the trial court.