Page No.# 1/6 vs Page No.# 3/6
2023 Latest Caselaw 4749 Gua

Gauhati High Court

Page No.# 1/6 vs Page No.# 3/6 on 28 November, 2023

Author: Ajit Borthakur

Bench: Ajit Borthakur

                                                                 Page No.# 1/6

GAHC010253102018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP/178/2018

         DINARAM SAIKIA AND 9 ORS.
         S/O- LATE PUNIRAM SAIKIA, R/O- NAMTIAL PATHAR, P.O- NAMTIAL
         PATHAR, P.S- SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640

         2: DULAN SAIKIA
          S/O- SRI DINARAM SAIKIA
          R/O- NAMTIAL PATHAR
          P.O- NAMTIAL PATHAR
          P.S- SIVASAGAR
          DIST- SIVASAGAR
         ASSAM
          PIN- 785640

         3: UTPAL SAIKIA
          S/O- DINARAM SAIKIA
          R/O- NAMTIAL PATHAR
          P.O- NAMTIAL PATHAR
          P.S- SIVASAGAR
          DIST- SIVASAGAR
         ASSAM
          PIN- 785640

         4: BOGI SAIKIA
          S/O- DINARAM SAIKIA
          R/O- NAMTIAL PATHAR
          P.O- NAMTIAL PATHAR
          P.S- SIVASAGAR
          DIST- SIVASAGAR
         ASSAM
          PIN- 785640

         5: NIRU SAIKIA
          S/O- DINARAM SAIKIA
          R/O- NAMTIAL PATHAR
                        Page No.# 2/6

P.O- NAMTIAL PATHAR
P.S- SIVASAGAR
DIST- SIVASAGAR
ASSAM
PIN- 785640

6: PAPU SAIKIA
 S/O- DINARAM SAIKIA
 R/O- NAMTIAL PATHAR
 P.O- NAMTIAL PATHAR
 P.S- SIVASAGAR
 DIST- SIVASAGAR
ASSAM
 PIN- 785640

7: MISONG
 R/O- NAMTIAL PATHAR
 P.O- NAMTIAL PATHAR
 P.S- SIVASAGAR
 DIST- SIVASAGAR
ASSAM
 PIN- 785640

8: BONTI SAIKIA
 R/O- NAMTIAL PATHAR
 P.O- NAMTIAL PATHAR
 P.S- SIVASAGAR
 DIST- SIVASAGAR
ASSAM
 PIN- 785640

9: BULI SAIKIA
 R/O- NAMTIAL PATHAR
 P.O- NAMTIAL PATHAR
 P.S- SIVASAGAR
 DIST- SIVASAGAR
ASSAM
 PIN- 785640

10: KOLI SAIKIA
 R/O- NAMTIAL PATHAR
 P.O- NAMTIAL PATHAR
 P.S- SIVASAGAR
 DIST- SIVASAGAR
ASSAM
 PIN- 78564

VERSUS
                                                                                      Page No.# 3/6


            SIVASAGAR MISING CULTURAL ORGANIZATION
            REP. BY ITS PRESIDENT SRI MADAN MILI, R/O- KANKAN NAGAR, P.S-
            SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640



Advocate for the Petitioner   : MR. P J SAIKIA

Advocate for the Respondent : MR. T J MAHANTA




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                            ORDER

28.11.2023

Heard Mr. P.J. Saikia, learned counsel appearing for the petitioners as well as Mr. T.J. Mahanta, learned Sr. Counsel appearing for the respondent.

By this petition under Sections 115 and 151 of the Code of Civil Procedure, 1908 read with Article 227 of the Constitution of India, the petitioners have prayed for setting aside and quashing the impugned order, dated 05.09.2018, passed by the learned Munsiff No.1, Sivasagar in Misc. (j) Case No.57/2015 in T.S. No.62/2013 rejecting the prayer for acceptance of counter claim by the petitioners/defendants.

The impugned order, dated 05.09.2018 is extracted hereinbelow-

"05/09/2018 Both the parties are duly represented.

Perused the case record.

Today's date was fixed for order on petition no. 1929/15. Vide petition no. 1929/15, the defendant has prayed to accept the counter claim on the ground shown in the petition.

Before entering into the detailed discussion in regard to the said petition, it is Page No.# 4/6

pertinent to go through the relevant provisions of law which would be needed for effective disposal of the said petition.

Order VIII Rule 6A CPC reads as, "(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court."

A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any doubt, that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a written statement.

Even, the Hon'ble Supreme Court of India in Bollepanda P. Poonacha&Anr vs. K.M. Madapa(2008), 13 SCC 179, observed as under: "A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence."

Hence, from the perusal of the above provision of the code as well as the above case law, following points comes forward:-

Firstly, counter-claim is in addition to the written statement of the defendant,

Secondly, the cause of action must arise before or after filing of suit but before written statement.

From perusal of the case record as well as upon going through the said petition, it appears that the suit was instituted by the plaintiff on 18.11.2013 and the defendant filed their defence i.e. their written statement on 10.04.2014 and further the instant petition for filing counter-claim on 19.11.2015 and the defendant/petitioner stated in the instant petition that the cause of action arose on 25.10.2013. Hence, it is clear that the cause of action arose prior to the filing of the suit. That clearly concludes that the cause of action which is shown in the counter claim was subsisting at the time of filing the written statement by the defendant.

Hon'ble Supreme Court of India in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 at page 366, stated that," These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for Page No.# 5/6

delivery of the defence has expired then neither can the written statement be filed as of right nor a counter-claim can be allowed to be raised, for the counter- claim under Rule 6-A must find its place in the written statement. The court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-

claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time."

Hence, after having a reading of the above cited judgment of the apex court, it gives an idea that the counter-claim must find its place in the written statement and once the written statement is filed or time to file such expires, no counter-claim be normally allowed. In the instant case, the defendant in their counter-claim has tried to take a plea of easementary right, thus showing the cause of action on 25.10.2013. Thus, the defendant was at his liberty to take such a plea as their counter-claim at the time of filing their written statement as it is an established principle that counter- claim is an addition to the written statement and must finds its place with the written statement.

Hence, from the above discussion it appears that the cause of action did not arose after the filing of the suit but arose before the filing of the suit. Upon going through the above case law an idea can be drawn that as the cause of action was subsisting when the plaintiff instituted the suit and also when the defendant filed the written statement, hence, the defendant ought to have filed the counter claim along with the written statement. The defendant failed to show any reason as to why the counter claim was not filed along with the written statement. The essential ingredient for filing counter claim is that it must be in addition to the written statement and must find its place with the written statement. In this case, the defendant did not file his counter claim along with the written statement even though the cause of action arose prior to filing of his written statement. Instead the defendant waited for long without any reason to file the counter claim in belated stage.

Upon perusal of the case record it appears that this is an old pending suit instituted in the year 2013 and is still resting at the stage of framing of issue. The written statement was filed by the defendant on 10.04.2014 and petition for allowing them to file counter-claim on 19.11.2015. Thus it also appears that there was a delay on the part of the defendant without any reason. Hence, it appears that allowing this counter-claim at this belated stage will cause prejudice to the plaintiff.

Hence, from the above discussion, the decision which is reached is that the counter- claim filed by the defendant could not be accepted and thus the petition no. 1929/15 is rejected.

The petition no. 1929/15 is finally decided and disposed of accordingly.

Page No.# 6/6

This Misc (j) case is disposed of on contest without cost."

Upon perusal of the impugned order and hearing the learned counsel of both sides, this Court finds that examination of actual status of the case at the time of filing of the counter claim and circumstances leading to the impugned order may be required to be scrutinized.

Therefore, call for a scanned copy of the order sheet of Title Suit No. 62/2013 and connected Misc.(J) Case No.57/2015 pending in the Court of learned Munsiff No.1, Sivasagar by e-mail.

Registry to issue requisition.

List on 21.12.2023.

JUDGE

Comparing Assistant