Gauhati High Court
Vinod Kumar Kedia vs M/S. J N Agency And 15 Ors on 7 September, 2023
Page No.# 1/7
GAHC010251212022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/300/2022
VINOD KUMAR KEDIA
S/O. LT. NANDLAL KEDIA, OFFICE ADDRESS- SIDING BAZAAR, A.T ROAD,
P.O., P.S. AND DIST. TINSUKIA, ASSAM, PERMANENT R/O. SARBANANDA
ROAD, MASJID PATTY, P.O., P.S. AND DIST. OF TINSUKIA, ASSAM.
VERSUS
M/S. J N AGENCY AND 15 ORS
PROPRIETORSHIP FIRM WHICH BELONGED TO SRI ANANT JALAN AS
SUCH REPRESENTED BY SRI ANANT JALAN, HAVING BRANCH OFFICE AT
SIDING BAZAAR, P.O., P.S. AND DISTRICT - TINSUKIA, ASSAM.
HEAD OFFICE ADDRESS AT-
4-SYNAGOGUE STREET, BBD BAG, SHOP NO. 201, CENTRAL BANK
BUILDING, NEAR HALDIRAM SWEET SHOP, KOLKATA-700001, WEST
BENGAL.
2:ANANT JALAN
S/O. SRI PAWAN KUMAR JALLAN
3:PAWAN KUMAR JALLAN
S/O. SRI LATE NAND KISHORE JALLAN
BOTH ARE THE RESIDENTS OF-
4-SYNAGOGUE STREET
BBD BAG
SHOP NO. 201
CENTRAL BANK BUILDING
NEAR HALDIRAM SWEET SHOP
KOLKATA-700001
WEST BENGAL.
4:PRITHVIRAJ SINGHI
S/O. LATE MAHALCHAND SINGHI
Page No.# 2/7
BEING THE MANAGER/ATTORNEY HOLDER OF THE FIRM M/S. J.N.
AGENCY
R/O. SLIDING BAZAAR
P.O.
P.S AND DISTRICT- TINSUKIA
ASSAM.
5:RAJ KUMAR SINGHI
S/O. UNKNOWN
(BEING THE ACCOUNTANT OF THE FIRM M/S. J.N. AGENCY)
R/O. KAMAL APARTMENT
3 FLOOR
SARBANANDA ROAD
MASJID PATTY
P.O.
P.S AND DISTRICT-TINSUKIA
ASSAM.
6:BIMAL KUMAR KEDIA
S/O. LATE NANDLAL KEDIA
7:M/S. BIDAWATKA TRADERS (A FIRM)
BEING REPRESENTED BY -SRI BIMAL KUMAR KEDIA
BOTH ARE PRESENT ADDRESS AT -
C/O. M/S. SHYAM TRADERS
J.K MARKET
CHIRWAPATTY ROAD
P.O.
P.S AND DISTRICT- TINSUKIA- 786125
ASSAM.
OLD ADDRESS- SLIDING BAZAAR
SHOP NO. R-31 AD R-32 RESPECTIVELY
P.O.
P.S AND DISTRICT- TINSUKIA- 786125
ASSAM.
8:SMT. PARBATI DEVI KEDIA
W/O. LATE NANDLAL KEDIA
9:PAWAN KUMAR KEDIA
S/O. LATE NANDLAL KEDIA
BOTH ARE RESIDENTS OF -
SARBANANDA ROAD
MASJID PATTY
P.O.
P.S AND DISTRICT- TINSUKIA
ASSAM.
Page No.# 3/7
10:SMT. ANITA AGARWAL
D/O. LATE NANDLAL KEDIA
R/O. M/S. JESHRAJ MOHANLAL
DACCAPATTY
P.O. BARPATHAR- 785602 DISTRICT- GOLAGHAT
ASSAM.
11:SMT. SULOCHANA TODI
D/O. LATE NANDLAL KEDIA
R/O. M/S. JESHRAJ MOHANLAL
DACCAPATTY
P.O.
P.S. AND DISTRICT- NOGAON (ASSAM).
12:RADHEYSHYAM KEDIA
S/O. LATE MANGTURAM KEDIA
R/O. E-3
901
CAPITAL GREENS
VESU
BHARTHANA
BESIDES PODDAR RESIDENCY
SURAT CITY
SVR COLLEGE
P.O. SURAT- 395007
GUJARAT.
13:SHREELAL KEDIA
S/O. LATE MANGTURAM KEDIA
R/O. D/708
SOMNATH ENCLAVE
NEAR SARGAM SHOPPING CENTRE
SURAT CITY
SVR COLLEGE
P.O. SURAT- 395007
GUJARAT.
14:MAHAVIR KEDIA
S/O. LATE MANGTURAM KEDIA
R/O. B-4/412
SHYAM VILLA
VIP ROAD
OPPOSITE SHYAM MANDIR
BHARTHANA
P.O. SURAT- 395007
GUJARAT.
Page No.# 4/7
15:SITARAM KEDIA
S/O. LATE MANGTURAM KEDIA
R/O. MANGALAM APARTMENT
FLAT NO. 2D
35 AHIRIPUKUR ROAD
P.O. KOLKATA-19
WEST BENGAL.
16:TINSUKIA DEVELOPMENT CORPORATION LTD.
A PUBLIC LIMITED COMPANY
BEING REPRESENTED BY ITS EXECUTIVE DIRECTOR
SRI. DEEPAK LOHIA
S/O. LATE RAM GOPAL LOHIA
HAVING ITS REGISTERED OFFICE AT A.T. ROAD
TINSUKIA TOWN
P.O.
P.S AND DISTRICT- TINSUKIA
ASSA
Advocate for the Petitioner : MR G N SAHEWALLA
Advocate for the Respondent : MR. R DUBEY (R1-R5)
PRESENT
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. G.N. Sahewalla,
Senior Advocate.
For the Respondents: Mr. K.N. Choudhury,
Senior Advocate.
Date of Hearing: 28.08.2023.
Date of Judgment: 07.09.2023.
Page No.# 5/7
JUDGMENT AND ORDER (CAV)
Heard Mr. G.N. Sahewalla, learned senior counsel appearing for the
petitioner. Also heard Mr. K.N. Choudhury, learned senior counsel
representing the respondents.
2. This is an application under Article 227 of the Constitution of India
challenging the order dated 07.11.2022 passed by the learned Civil
Judge , Tinsukia in Misc.(J) Case No.81/2022 arising out of Title Suit
No.52/2019.
3. The short question that arises in this revision petition is as to whether
after framing of issues, a counter-claim can be accepted by a civil court.
4. Mr. Sahewalla has relied upon a judgment of Supreme Court that
was delivered in Ashok Kumar Kalra v. Surendra Agnihotri, (2020) 2 SCC
394. Paragraph 21 of the judgment is quoted as under:
"21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo
on filing the counterclaim after filing the written statement, rather the restriction is
only with respect to the accrual of the cause of action. Having said so, this does
not give absolute right to the defendant to file the counterclaim with substantive
delay, even if the limitation period prescribed has not elapsed. The court has to
take into consideration the outer limit for filing the counterclaim, which is pegged
till the issues are framed. The court in such cases have the discretion to entertain
filing of the counterclaim, after taking into consideration and evaluating inclusive
factors provided below which are only illustrative, though not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of action pleaded.
(iii) Reason for the delay.
Page No.# 6/7
(iv) Defendant's assertion of his right.
(v) Similarity of cause of action between the main suit and the counterclaim.
(vi) Cost of fresh litigation.
(vii) Injustice and abuse of process.
(viii) Prejudice to the opposite party.
(ix) And facts and circumstances of each case.
(x) In any case, not after framing of the issues."
5. Mr. Choudhury, on the other hand relied upon a decision that was
delivered in Vijay Prakash Jarath v. Tej Prakash Jarath, (2016) 11 SCC 800.
Paragraph 10 of the judgment is quoted as under:
"10. It is quite apparent from the factual position noticed hereinabove, that
after the issues were framed on 18-10-1993, the counterclaim was filed by the
appellants before this Court (i.e. by Defendants 3 and 4 before the trial court)
almost two-and-a-half years after the framing of the issues. Having given our
thoughtful consideration to the provisions relating to the filing of counterclaim,
we are satisfied, that there was no justification whatsoever for the High Court to
have declined, the appellant before this Court, from filing his counterclaim on
17-6-1996, specially because, it is not a matter of dispute that the cause of
action, on the basis of which the counterclaim was filed by Defendants 3 and
4, accrued before their written statement was filed on 11-11-1992. In the
present case, the respondent-plaintiff's evidence was still being recorded by
the trial court, when the counterclaim was filed. It has also not been shown to
us, that any prejudice would be caused to the respondent-plaintiff before the
trial court, if the counterclaim was to be adjudicated upon, along with the
main suit. We are of the view, that no serious injustice or irreparable loss (as
expressed in para 15 of Bollepanda P. Poonacha case [Bollepanda P.
Poonacha v. K.M. Madapa, (2008) 13 SCC 179] ), would be suffered by the
respondent-plaintiff in this case."
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6. I have considered the submissions made by the learned counsels of
both sides.
7. Vijay Prakash Jarath (supra), is a two Judges Bench judgment
whereas Ashok Kumar Kalra (supra), is a three Judges Bench judgment.
Moreover, it is a judgment of 2020 whereas the judgment relied upon by
Mr. Choudhury is a 2016 judgment. Naturally, three Judges Bench
judgment and the latest one would prevail. Supreme Court has laid
down that after framing of issues, counter-claim under Order 8 Rule 6A of
the Code of Civil Procedure cannot be filed.
8. Therefore, the learned trial court has committed error while
accepting the written statement filed by the respondents. The impugned
order dated 07.11.2022 whereby the counter-claim filed by the
respondents was accepted, is set aside.
9. The revision petition is allowed and disposed of accordingly.
JUDGE
Comparing Assistant
