[Cites 5, Cited by 0]
Gauhati High Court
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GAHC010043882026
2026:GAU-AS:3359
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/66/2026
SMTI USHA MAHESWARI
WIDOW OF LATE SITARAM MAHESWARI, R/O JAMUGURI CENTRE, P.O.-
JAMUGURI, P.S.- JAMUGURI- 784180, DIST- SONITPUR, ASSAM
VERSUS
PREM SAGAR JHA
S/O LATE MAKSUDAN JHA, R/O JAMUGURI CENTRE, P.O.- JAMUGURI, P.S.-
JAMUGURI-784180, DIST- SONITPUR, ASSAM
Advocate for the Petitioner : MR A K MAHESWARI,
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 06-03-2026
Heard Mr. A.K. Maheshwari, learned counsel for the petitioner.
2. In this petition, under Article 227 of the Constitution of India, the petitioner
has challenged the order dated 02.01.2026, passed by the learned Civil Judge
(Junior Division) No. 1, Sonitpur at Tezpur (trial court hereinafter), in Petition No.
760/2024, arising out of Title Suit No. 121/2019.
3. It is to be noted here that vide impugned order dated 02.01.2026, the
learned trial court had dismissed the Petition No. 760/24, dated 18.04.2024, filed in
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Title Suit No. 121/2019, for accepting the counter claim under Order 8 Rule 6A of
the CPC.
4. Mr. Maheshwari, learned counsel for the petitioner submits that the
respondent herein, as plaintiff, had instituted one title suit, being Title Suit No.
121/2019, for declaration of right, title and interest by virtue of adverse
possession. In the said suit, the petitioner herein, as defendant, had filed written
statement and the same was accepted by the learned trial court on 16.02.2024.
Thereafter, on 18.04.2024, the petitioner herein had filed a petition, being Petition
No. 760/2024, for acceptance of the counter claim. But, the learned trial court had
rejected the same on the ground that the petitioner herein could not file the
counter claim along with written statement and also on the ground that in the
counter claim prayer has been made for ejectment/eviction and recovery of arrear
and current rent and as such, the same cannot be tried with a prayer made by the
plaintiff for declaration of right, title and interest by virtue of adverse possession
and the counter claim will fundamentally change the nature of the suit.
4.1. Mr. Maheshwari further submits that by the aforementioned observation, the
learned trial court had misdirected itself and that counter claim can be filed even
after filing of the written statement and the same has been well settled in a catena
of decisions of Hon'ble Supreme Court in the case of Vijay Prakash Jarath vs.
Tej Prakash Jarath, reported in (2016) 11 SCC 800 and Ashok Kumar Kalra
vs. Surendra Agnihotri, reported in (2020) 2 SCC 394 and also in the
decisions of this Court in the case of Aman Jindal and Others vs. M/S Dayal
Enterprises and Others, reported in 2023 (6) GLJ 718 and Vinod Kumar
Kedia vs. M/s J.N. Agency and Others, reported in 2024 (1) GLJ 48.
4.2. Mr. Maheshwari also submits that on the next date of filing the written
statement, i.e. on 18.04.2024, the counter claim has been filed and that in the
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petition, at paragraph Nos. 3 & 4, it has been clearly stated that the petitioner had
submitted her written statement along with the counter claim to the engaged
counsel, but the said counsel had filed only the written statement. Mr. Maheshwari
further submits that on account of the fault of the Advocate, the petitioner should
not suffer and under such circumstances, he has contended to allow this petition.
5. Having heard the submission of learned counsel for the petitioner, I have
carefully gone through the petition as well as the documents placed on record and
also perused the impugned order dated 02.01.2026 and also the decisions relied
upon by him.
6. It is well settled proposition of law that counter claim can be filed even after
filing of the written statement, however, within the stipulated period of limitation
and if it is beyond the period of limitation, then the reason for such delay has to be
explained. Reference in this context can be made to a decision of Hon'ble Supreme
Court in the case of Rohit Singh v. State of Bihar, reported in (2006) 12
SCC 734, wherein it has been held that a counterclaim, no doubt, could be filed
even after the written statement is filed, but that does not mean that a
counterclaim can be raised after issues are framed and the evidence is closed.
6.1. Again in the case of Vijay Prakash Jarath (supra) Hon'ble Supreme
Court has held that filing of counter claim was allowed after almost two and half
years of framing of framing of issues as no serious prejudice or irreparable loss
could be caused to the respondent-plaintiff before the trial court, if the
counterclaim was to be adjudicated upon, along with the main suit.
7. In the instant case, the learned trial court had dismissed the petition only on
the ground that the counter claim was not filed with the written statement and no
reason has been offered for the same and that the suit for declaration of right, title
and interest by virtue of adverse possession and counter claim for
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ejectment/eviction and recovery of arrear and current rent cannot be tried
together, as the counter claim will fundamentally change the nature of the suit.
8. The ground so assigned by the learned trial court, appears to be not based
on sound principle of law and failed to mandate acceptance of this Court, as the
counter claim can be filed even after filing of written statement.
9. Notably, it is the contention of the petitioner that she had handed over the
written statement and counterclaim together to her counsel, who, in turn, had filed
only the written statement in the trial court. Further it appears that the written
statement was filed on 16.02.2024 and the counter claim, along with the petition
was filed on 18.04.2024, on the very next date of the case. Further, from the
impugned order dated 02.01.2026, it appears that the issues have not yet been
settled and the next date is fixed of 12.03.2026. In view of the given factual
backdrop, and also in view of the well settled proposition of law, as discussed
above, this court is of the considered opinion that the impugned order dated
02.01.2026, failed to withstand legal scrutiny and on such count the same warrants
interference of this court.
10. In the result, this court finds sufficient merit in the petition and accordingly
the same stands allowed. The impugned order, dated 02.01.2026, stands set aside
and quashed.
11. Consequent upon, setting aside of the impugned order dated 02.01.2026, the
learned trial court shall accept the counterclaim of the petitioner herein and
thereafter, it shall proceed with the case in accordance with law.
12. In terms of above, this petition stands disposed of.
JUDGE
Comparing Assistant
