Sunimani Singh And Others vs Raidas Singh And Others .... Opp. ...
2023 Latest Caselaw 15585 Ori

Orissa High Court

Sunimani Singh And Others vs Raidas Singh And Others .... Opp. ... on 5 December, 2023

Author: K.R. Mohapatra

Bench: K.R. Mohapatra

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 06-Dec-2023 18:58:33




                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                               CMP NO.1348 OF 2023
                                      Sunimani Singh and others                   ....       Petitioners
                                                                     Mr. Swarup Kumar Patnaik, Advocate
                                                                  -versus-
                                      Raidas Singh and others                     ....     Opp. Parties

                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

               Order No.                               05.12.2023

                 01.             1.       This matter is taken up through hybrid mode.

2. Order dated 4th August, 2023 (Annexure-8) passed by learned 2nd Additional Senior Civil Judge, Baripada in CS No.34/352 of 2018/2021 is under challenge in this CMP, whereby an application for acceptance of written statement along with counter claim, has been rejected.

3. Mr. Patnaik, learned counsel for the Petitioners submits that the suit has been filed by the Opposite Parties for declaration and permanent injunction. During pendency of the suit, the Defendant No.2 died and the Petitioners are substituted in his place as Defendant Nos. 2(a) to 2(c). During pendency of the suit, taking advantage of the death of Defendant No.2 and Covid-19, the Plaintiff along with their henchmen stacked bricks and other building materials over the land and forcibly occupied schedule 'Ka' property on 1st December, 2020 which was in possession of the Defendants. Hence, after being substituted, the Defendants filed an additional written statement along with counter claim claiming recovery of the possession of the suit land. While accepting the additional written statement, learned trial Court rejected the counter

Signed by: ROJALIN NAYAK // 2 // Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33

claim on the ground that the trial of the suit had already commenced. Hence, this CMP has been filed.

4. Learned counsel for the Petitioners relied upon the following observations made in the case of Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri and others, reported in (2020) 2 SCC 394,

"57. At the same time, in exceptional circumstances, to prevent multiplicity of proceedings and a situation of effective re-trial, the court may entertain a counterclaim even after the framing of issues, so long as the court has not started recording the evidence. This is because there is no significant development in the legal proceedings during the intervening period between framing of issues and commencement of recording of evidence. If a counterclaim is brought during such period, a new issue can still be framed by the court, if needed, and evidence can be recorded accordingly, without seriously prejudicing the rights of either party to the suit.

58. At this juncture, I would like to address the observation in Rohit Singh [Rohit Singh v. State of Bihar, (2006) 12 SCC 734] that a counterclaim, if filed after the framing of the issues and closing of the evidence, would be illegal and without jurisdiction. In my opinion, this is not a correct statement of law, as the filing of counterclaims after the commencement of recording of evidence is not illegal per se. However, I hasten to add that permitting such a counterclaim would be improper, as the court's discretion has to be exercised wisely and pragmatically.

59.3.Third, the specific objectives of reducing multiplicity of litigation and ensuring speedy trials underlying the provisions for counterclaims, must be accorded due consideration."

5. He, therefore, submits that in exceptional cases, counter claim can be accepted by the Court even after commencement of trial to avoid multiplicity of litigation. In the instant case, the subsequent event occurred after commencement of the trial. Further, additional written statement filed by the Defendant Nos.

Signed by: ROJALIN NAYAK // 3 // Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33

2(a) to 2(c) has been accepted. Thus, there was no difficulty on the part of learned trial Court to accept the counter claim filed along with said additional written statement.

6. Considering the submission made by learned counsel for the Petitioners and the case law cited above, this Court feels it proper to go through the provision under Order VIII Rule 6-A CPC, which reads as under:

"6-A. Counter-claim by defendant.-(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.

(2) Such counter-claim shall have the same effect as a cross-

suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated rules applicable to plaints and governed by the rules applicable to plaints."

7. The provision, if read, along with the settled law in Ashok Kumar Kalra (supra), it is apparent that no counter claim can be accepted after settlement of the issues. But Hon'ble Supreme Court, as relied upon by learned counsel for the Petitioner observes that counter claim can be accepted even if execution of the trial. Since the majority view of the said case law is that no counter claim can be accepted after framing of issues, this Court holds that learned

Signed by: ROJALIN NAYAK // 4 // Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Dec-2023 18:58:33

trial Court has committed no error in rejecting the counter claim, which has been filed after commencement of the trial.

8. Thus, I find no infirmity in the impugned order.

9. Accordingly, the CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin