Patna High Court
Saurabh Suman vs Tutari Nonian on 14 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1780 of 2019
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Saurabh Suman W/o Sri Rajendra Prasad Resident of village- Sikandarpur,
P.s.- Mufassil, District- Nawada at present resident of Mohalla- Ram Nagar,
Nawadah, P.s. and District- Nawadah
... ... Petitioner/s
Versus
1. Tutari Nonian W/o Tulasi Nonia Resident of Village- Budhaul Tola Jangal
Beldari, P.s.- Nawada Town, District- Nawadah
2.1. Chhoti Devi, D/o of late Tulsi Noniya, Present Resident of Budhaul, Jangal
Beldari, P.S.and District- Nawada.
2.2. Andhiya Devi, D/o of late Tulsi Noniya, Resident of Village-Jamuar Beldari,
P.O. Tungi, District-Gaya.
2.3. Gori Devi, D/o of late Tulsi Noniya, Resident of Village- Tekha, Pharper,
P.S. Ariyari, District-Sheikhpura.
2.4. Parwati Devi, D/o of late Tulsi Noniya, Resident of Ishua, Oriya Tal, P.S.
Ghat Ko Sumbha, District- Shekhpura.
4. Mahbir Noniya S/o Late Karu Nonia Resident of Village- Budhaul Tola
Jangal Beldari, P.s.- Nawada Town, District- Nawadah
5. Rajo Noniya S/o Late Karu Nonia Resident of Village- Budhaul Tola Jangal
Beldari, P.s.- Nawada Town, District- Nawadah
6. Bhatani Noniyan D/o Karu Nonia w/o Mahadeo Noniya, Resident of
Village- Budhaul Tola Jangal Beldari, P.s.- Nawada Town, District-
Nawadah
7. Malo Noniyan D/o Karu Nonia W/o Kali Chatar, Resident of Village-
Budhaul Tola Jangal Beldari, P.s.- Nawada Town, District- Nawadah
8. Pairuchauhan @ Jataha Chauhan S/o Late Eabulal Chauhan Resident of
Village- Budhaul Tola Jangal Beldari, P.s.- Nawada Town, District-
Nawadah
9. Surendar Kumar S/o Sri Ramkhelawan Prasad Resident of Mohalla- New
Area, P.s.- Nawada Town, District- Nawada
10. Sanjay Kumar, Son of Saryu Yadav Resident of Managerbigha, P.S. and
District- Nawadah.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. J.S. Arora, Sr. Advocate
Mr. Rakesh Kumar, Advocate
Mr. Prabhat Ranjan Singh, Advocate
For the Respondent/s : Mr. S.S. Dwivedi, Sr. Advocate
Mr. Madhu Prasun, Advocate
Mrs. Renu Kumari, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
2/21
Date : 14-05-2025
The present petition has been filed against the order
dated 17.09.2019 passed in Title Suit No. 170 of 2009 by the
learned Civil Judge (Senior Division)-I, Nawada whereby and
whereunder the application filed by the defendants/respondent
no. 10 dated 02.08.2019 to set up counter claim has been
allowed.
02. Briefly stated, the facts of the case are that
plaintiff/petitioner filed Title Suit No. 170 of 2009 for
declaration of his title over the suit land and none of the
defendants have any right, title, interest and possession over the
suit land seeking further relief to confirm the possession of the
plaintiff over the suit land against defendant nos. 1-9 while
holding that Revisional Survey entry with regard to the land was
wrong, baseless and incorrect. The defendants/respondents
appeared and filed their written statement. Another written
statement was filed on 07.01.2016 which was accepted vide
order dated 14.01.2016. Issues were framed and parties adduced
their evidence. After closure of evidence, argument was
concluded finally on 23.02.2017. The defendants while arguing
the matter relied upon their first written statement and an
objection was raised by the plaintiff/petitioner which was
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
3/21
allowed. Meanwhile defendants/respondents filed an application
for transfer of the matter to another Court which was allowed
vide order dated 22.03.2017. Meanwhile, defendant/respondent
no. 9 filed a written application bearing CWJC No. 11295/2009
challenging the order dated 15.07.2009 passed by the District
Magistrate, Nawada in Mutation Revision Case No.
57(R)/08/29(R)/2009 wherein this Court disposed of the writ
application vide order dated 01.05.2015 observing that the title
suit has been pending since 2009 and both the parties were
directed to co-operate in disposal of the case and the learned
trial court was directed to dispose of the matter without granting
unnecessary adjournment to any of the parties and preferably
within nine months. It further tanspires that despite the orders of
this Court dated 01.05.2015 and on conclusion of the arguments
of the parties, the learned trial court did not dispose of the title
suit. Thereafter, the defendants/respondent no. 10, the
subsequent purchaser of a piece of disputed land vide registered
sale deed dated 03.11.2016 executed after the closure of
evidence by both the parties filed an application for becoming a
party on 09.08.2018 which was allowed on 27.06.2019.
Thereafter, the evidence on behalf of respondent no. 10 was also
closed on 08.07.2019 and the date was fixed for final arguments.
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
4/21
On 02.08.2019, the respondent no. 10 filed a counter claim
before the learned trial court. The learned trial court allowed the
counter claim filed on 02.08.2019 by the defendant no. 10/
respondent no. 10 under Order VIII Rule 6A of the Code of
Civil Procedure (in short "the Code") vide order dated
17.09.2019
. The said order is under challenge before this Court.
03. Mr. J.S. Arora, learned senior counsel appearing
on behalf of the petitioner submitted that the impugned order
has been passed ignoring the facts and the law and the learned
trial court has failed to apply its judicial mind and passed the
impugned order which is contrary to the law. Mr. Arora
submitted that it is the settled law that right, title and interest
and the subsequent purchaser depends upon the fate of the suit
which is being contested by the vendor. Accordingly, purchaser
has got no independent right apart from the right which the
vendor has got. The respondent no. 10 purchased the disputed
land not only during the pendency of the suit but also after the
evidence was adduced. Further at the time of filing of written
statement, the respondent no. 10 did not make any counter claim
though objections were raised by the petitioner, the same were
not considered by the learned trial court. The learned trial court
failed to understand the import of provision under Order VIII
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
Rule 6A of the Code. The provision for filing counter claim by
the defendant have been provided under the statute by the
Legislature to avoid multiplicity of judicial proceeding and to save
the precious time of Courts. In the present matter, defendant
nos. 1-9/respondent nos. 1-9 have not filed any counter claim.
Defendant no. 10 appeared in the picture after 10 years from the
date of filing of the suit on the basis of a sale deed executed in
his favour after seven years from the date of filing of the suit
and after conclusion of evidence of the parties. Though
respondent no. 10 has become a defendant in the present suit but
so far as his right to counter claim is concerned, dispute is
between the plaintiff and the vendor of the defendant/respondent
no. 10 but this fact was also not considered by the learned trial
court. Mr. Arora further submitted that the learned trial court
completely gave a go by to the settled position of law though it
considered the authorities still it allowed the counter claim and
the same was not even maintainable. Mr. Arora referred to the
decision of the Hon'ble Supreme Court in the case of Mahesh
Govindji Trivedi Vs. Bakul Maganlal Vyas reported in (2023)
11 SCC 516 wherein the Division Bench of the Hon'ble Supreme
Court referred to the three Judge Bench decision of the Hon'ble
Supreme Court in the case of Ashok Kr. Kalra Vs. Surendra
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
Agnihotri, reported in (2020) 2 SCC 394 wherein it has been
held that Order VIII Rule 6A 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. The Hon'ble Supreme Court further held that 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 and further held that the court has to take into
consideration the outer limit for filing the counterclaim, which
is pegged till the issues are framed.
Mr. Arora further submitted that moreover, the reliefs
sought by the defendant/respondent no. 10 in his counter claim
are all time barred with regard to registered sale deeds which
ranges from 1967 till 21.01.2011. Thus, Mr. Arora submitted
that impugned order could not be sustained and the same being
an illegal order needs to be set aside by this Court.
04. Mr. S.S. Dwivedi, learned Senior Counsel
appearing on behalf of the respondent no. 10, submitted that
there is no infirmity in the impugned order and the said order is
proper and valid. Respondent no. 10 purchased 20 ¼ decimal of
suit land vide registered sale deed dated 03.11.2016 from
defendant no. 8 for valuable consideration and subsequently
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
came in the physical possession over his purchased land.
Thereafter, he applied for mutation and on his application his
name was mutated in the receipt of the purchased portion of
land and accordingly rent receipt was issued to him. Against the
said mutation the plaintiff/petitioner preferred Mutation Appeal
No. 69/2017 before the learned D.C.L.R., Nawada and
thereafter, the respondent no. 10 got the knowledge of pending
Title Suit No. 170/2009. Thereafter, the respondent no. 10 on
09.08.2018 filed an application under Order I Rule 10 and
Section 151 of the Code for being impleaded as party. The
application of the respondent no. 10 was allowed on 27.06.2019
with condition that respondent no. 10 has to file his written
statement in 7 days and he has to conclude his evidence in 60
days. The said order of the learned trial court dated 27.06.2019
has remained unchallenged till date. In compliance of the said
order, the respondent no. 10 filed his written statement on
04.07.2019 and started adducing his evidence and from
08.07.2019 till 08.08.2019, six witnesses were examined.
During continuity of his evidence respondent no. 10 filed his
application dated 02.08.2019 under Order VIII Rule 6A of the
Code making his counter claim. Therefore in exceptional
circumstances, the respondent no. 10 was compelled to file his
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
written statement as it was impossible for the respondent no. 10
to file his counter claim before settlement of issues. Mr.
Dwivedi further submitted that the Court was faced with a
situation wherein it has to see that the prejudice which was
going to be caused would be greater to which party, the
plaintiff/petitioner or to defendants/respondent no. 10.
05. Mr. Dwivedi referred to a decision of the Hon'ble
Supreme Court in the case of Vijay Prakash Jarath vs. Tek
Prakash Jarath reported in (2016) 11 SCC 800, wherein the
Hon'ble Supreme Court allowed the filing of counter claim after
two and a half years of framing of the issues on the ground that
it has not been shown that any prejudice would be caused to the
respondent-plaintiff before the trial court, if the counter-claim
was to be adjudicated upon, along with the main suit and the
Hon'ble Supreme Court further observed that no serious
injustice or irreparable loss would be sufferred by the
respondent/plaintiff.
06. Mr. Dwivedi next submitted that if the respondent
no. 10 is not allowed to bring his counter claim on record and
the issues which are settled, are decided by the learned trial
court, the same would act as res judicata. If issues are once
decided, the next suit on the same ground would be barred by
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
res judicata. Mr. Dwivedi referred to the issues, 8, 9 and 10 to
support his contention that if these issues are decided, the
respondent no. 10 would be greatly prejudiced as principles of
res judicata would come into play on these issues.
07. Mr. Dwivedi further submitted that by virtue of
sale deed executed in his favour, respondent no. 10 is within his
rights to protect his right, title, interest and possession over his
purchased land. If the vendor of the respondent no. 10 has not
made any counter claim, the same does not preclude the
respondent no. 10 from making counter claim to avoid
multiplicity of the suit especially when suit is pending for
adjudication before a Court of competent jurisdiction. Mr.
Dwivedi further submitted that the Hon'ble Supreme Court has
clearly held that counter claim could be filed in three ways -
I. By including it in the written statement.
II. By way of amendment to the written statement.
III. By way of subsequent pleadings
The respondent no. 10 has adopted the third recourse
so his approach could not be faulted.
08. Mr. Dwivedi further submitted that the law is
never static and the object is to render justice. Respondent no.
10 was initially not a party and subsequently when he was made
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
a defendant in the suit, he filed his written statement and
adduced the evidence in compliance of orders of the learned
trial court which allowed his impleadment. The respondent no.
10 complied the orders and for this reason, he was not able to
file his counter claim at the time of filing of written statement or
prior to settlement of issues. However, counter claim could be
filed even at the stage of evidence and referred to Vijay Prakash
Jarath(Supra). Thus, Mr. Dwivedi submitted that in the peculiar
facts and circumstances of this case it is incumbent that all the
issues should be heard and disposed of by the same Court. There
is no infirmity or illegality in the impugned order and the
learned trial court, after hearing the parties has allowed the
petition for counter claim on costs for the ends of justice with a
reasoned order and hence the said order does not need any
interference.
09. By way of reply, Mr. Arora submitted that
defendant/respondent no. 8 is the vendor of respondent no. 10
and he had already filed his written statement. The respondent
no. 10 purchased the suit property during the pendency of the
suit and if the defendant no. 8 succeeds then only defendant no.
10 would succeed in this case. The respondent no. 10 filed the
counter claim after adducing five witnesses and this was only to
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
delay the matter. He had already been knowing about the sale
deeds which he has challenged by way of counter claim and in
this manner he has challenged 14 sale deeds. Allowing the
application for counter claim is in teeth of the decision of the
Hon'ble Supreme Court in the case of Mahesh Govindji Trivedi
(supra) and Ashok Kr. Kalra (supra). The respondent no. 10
could not be given such a long rope. Mr. Arora thus submitted
that there is no scope for allowing the impugned order to be
sustained.
10. Having regard to the submission of the parties and
on perusal of record, the issue before this Court is that whether
in the given circumstances, the learned trial court was justified
in allowing the counter claim when the same was filed during
the recording of evidence of defendants/respondent no. 10?
11. It would be advantageous to refer relevant
provisions of law.
12. Order VIII Rule 6A and 9 of the Code reads as
under:-
"6A. 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
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
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 as a plaint
and governed by the rules applicable to plaints.
9. Subsequent pleadings.
No pleading subsequent to the written statement of
a defendant other than by way of defence to a set-
off or counter-claim shall be presented except by
the leave of the Court and upon such terms as the
Court thinks fit, but the Court may at any time
require a written statement or additional written
statement from any of the parties and fix a time for
presenting the same."
13. The law with regard to counter claim has been
considered in various decisions of the Hon'ble Supreme Court
and the same are quite illuminating. The three Judges Bench of
Hon'ble Supreme Court in the case of Ashok Kumar Kalra
(supra) in paragraph 21 summed up its finding in the following
manner:-
"......., 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
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
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.
(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."
One of the Hon'ble Judges partly supplementing and
partly dissenting further observed in paragraph nos. 31 and 60
as under:-
"31.From the foregoing discussion, it is clear that
a counterclaim can be filed if two conditions are
met: first, its cause of action complies with Order
8 Rule 6-A(1); and second, it is filed within the
period specified under the Limitation Act. Clearly,
by itself, Rule 6-A does not specifically require
that a counterclaim has to be filed along with the
written statement. In the absence of a particular
mandate under this Rule, it is necessary to look to
other provisions of CPC to determine whether a
counterclaim can be filed after a written statement.
60.Having considered the previous judgments of
this Court on counterclaims, the language
employed in the rules related thereto, as well as the
intention of the legislature, I conclude that it is not
mandatory for a counterclaim to be filed along
with the written statement. The court, in its
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
discretion, may allow a counterclaim to be filed
after the filing of the written statement, in view of
the considerations mentioned in the preceding
paragraph. However, propriety requires that such
discretion should ordinarily be exercised to allow
the filing of a counterclaim till the framing of
issues for trial. To this extent, I concur with the
conclusion reached by my learned Brothers.
However, for the reasons stated above, I am of the
view that in exceptional circumstances, a
counterclaim may be permitted to be filed after a
written statement till the stage of commencement
of recording of the evidence on behalf of the
plaintiff."
14. Prior to that in the case of Ramesh Chand
Ardawatiya Vs. Anil Panjwani reported in (2003)7SCC 350 the
Hon'ble Supreme Court in paragraph no. 28 observed as under:-
"28. ... The purpose of the provision enabling
filing of a counterclaim is to avoid multiplicity of
judicial proceedings and save upon the court's time
as also to exclude the inconvenience to the parties
by enabling claims and counterclaims, that is, all
disputes between the same parties being decided in
the course of the same proceedings. If the
consequence of permitting a counterclaim either
by way of amendment or by way of subsequent
pleading would be prolonging of the trial,
complicating the otherwise smooth flow of
proceedings or causing a delay in the progress of
the suit by forcing a retreat on the steps already
taken by the court, the court would be justified in
exercising its discretion not in favour of
permitting a belated counterclaim. The framers of
the law never intended the pleading by way of
counterclaim being utilised as an instrument for
forcing upon a reopening of the trial or pushing
back the progress of proceeding. Generally
speaking, a counterclaim not contained in the
original written statement may be refused to be
taken on record if the issues have already been
framed and the case set down for trial, and more
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
so when the trial has already commenced. ... A
refusal on the part of the court to entertain a
belated counterclaim may not prejudice the
defendant because in spite of the counterclaim
having been refused to be entertained he is always
at liberty to file his own suit based on the cause of
action for counterclaim."
(emphasis supplied)
15. Thereafter, in the case of Rohit Singh Vs. State of
Bihar reported in (2006) 12 SCC 734, the Hon'ble Supreme
Court considered the issue of filing of belated counter claims
and held in paragraph 18 as under:-
"18. ... 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.
Therefore, the entertaining of the so-called
counterclaim of Defendants 3 to 17 by the trial
court, after the framing of issues for trial, was
clearly illegal and without jurisdiction. On that
short ground, the so-called counterclaim, filed by
Defendants 3 to 17 has to be held to be not
maintainable."
(emphasis supplied)
16. In Vijay Prakash Jarath (supra), the Hon'ble
Supreme Court discussed the procedure for filing of the counter
claim and observed in paragraph nos. 8, 9 and 10 as under:-
"8.It is in these circumstances, that we advert to
Order 8 Rule 6-A of the Code of Civil Procedure,
which is being reproduced below:
"6-A.Counterclaim 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
counterclaim against the claim of the plaintiff, any
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
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 counterclaim is in the
nature of a claim for damages or not:
Provided that such counterclaim shall not exceed
the pecuniary limits of the jurisdiction of the court.
(2) Such counterclaim 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 counterclaim.
(3) The plaintiff shall be at liberty to file a written
statement in answer to the counterclaim of the
defendant within such period as may be fixed by
the court.
(4) The counterclaim shall be treated as a plaint
and governed by the rules applicable to plaints."
9.A perusal of sub-rule (1) of Rule 6-A of Order 8,
leaves no room for any doubt, that the cause of
action in respect of which a counterclaim can be
filed, should accrue before the defendant has
delivered his defence, namely, before the
defendant has filed a written statement. The
instant determination of ours is supported by the
conclusions drawn in Bollepanda P. Poonacha v.
K.M. Madapa [Bollepanda P. Poonachav.K.M.
Madapa, (2008) 13 SCC 179] , wherein this Court
observed as under: (SCC p. 183, para 11)
"11. The provision of Order 8 Rule 6-A must be
considered having regard to the aforementioned
provisions.A right to file counterclaim is an
additional right. It may be filed in respect of any
right or claim, the cause of action therefor,
however, must accrue either before or after the
filing of the suit but before the defendant has
raised his defence. The respondent in his
application for amendment of written statement
categorically raised the plea that the appellants
had trespassed on the lands in question in the
summer of 1998. Cause of action for filing the
counterclaim inter alia was said to have arisen at
that time. It was so explicitly stated in the said
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
application. The said application, in our opinion,
was, thus, clearly not maintainable. The decision
of Ryaz Ahmed [Ryaz Ahmed v. Lalith Kumar
Chopra, 2007 SCC OnLine Kar 159 : ILR 2007
KAR 2489] is based on the decision of this Court
in Baldev Singh v. Manohar Singh [Baldev Singh
v. Manohar Singh, (2006) 6 SCC 498] ."
(emphasis supplied)
It is not a matter of dispute in the present case,
that cause of action for which the counterclaim
was filed in the present case, arose before the
respondent-plaintiff filed the suit (out of which
these petitions/appeals have arisen). It is,
therefore, apparent that the appellants before this
Court were well within their right to file the
counterclaim.
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."
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
17. In the recent decision of Mahesh Govindji Trivedi
(supra) wherein referring to the case of Ashok Kumar Kalra
(supra) in paragraph 30 and 31, the Hon'ble Division Bench
recorded its finding in paragraph no. 32 which reads as under:-
"32.In a conspectus of the aforesaid and while
proceeding on the fundamental principles that the
rules of procedure are intended to subserve the
cause of justice rather than to punish the parties in
conduct of their case, we are clearly of the view
that the counterclaim in question could not have
been removed out of consideration merely because
it was presented after a long time since after filing
of the written statement."
18. Now, the reading of the aforesaid decisions leaves
no doubt in mind that the mandate of law is that ordinarily the
counter claim should be filed along with the written statement
and in certain cases even after settlement/framing of issues.
However in exceptional circumstances, the filing of counter
claim has been allowed even when the evidence of plaintiff was
being recorded.
19. Coming back to the facts of the case, the petition
of the respondent no. 10 dated 09.08.2018 for impleadment was
allowed vide order dated 27.06.2019. Thereafter, the respondent
no. 10 was directed to file his written statement within seven
days and thereafter he was directed to adduce his evidence
within 60 days. In these circumstances, the claim of respondent
about why counter claim could not be filed earlier deserves
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
sympathetic consideration. The evidence of plaintiff was already
closed and thereafter the respondent no. 10 appeared in the suit
and it further transpires that he has been acting under the
orders/directions of the learned trial court with regard to filing
of the written statement and adducing the evidence thereafter he
filed his petition for taking the counter claim on record dated
02.08.2019. While considering the prayer for taking the counter
claim on record, the facts preceding to the event become quite
relevant. So delay and stage of the trial are not the only factors
for consideration. Even the Hon'ble Supreme Court in the case
of Vijay Prakash Jarath(supra) allowed filing of the counter
claim after two and half years of framing of issue and while
evidence of plaintiff was being recorded.
20. Under the aforesaid circumstances, the counter
claim filed by respondent no. 10 could be said to be belated but
considering the plight of respondent no. 10, the same could not
be declined for being taken on record as the same would amount
to denying justice to respondent no. 10. Time and again, it has
been held by the Hon'ble Supreme Court that procedural law is
handmaiden of justice and should be used to further the cause of
justice. But such provisions have been enacted by the
Legislature to facilitate the administration of justice and could
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
not be simply sacrificed on some righteous notion of morality to
deliver justice at any cost to one party without thinking whether
the same could cause injustice to the other side. In the case of
Sambhaji and Ors. Vs. Gangabai and Ors. reported in (2008)
17 SCC 117 as under :-
"The processual law so dominates in certain
systems as to overpower substantive rights and
substantial justice. The humanist rule that procedure
should be the handmaid, not the mistress, of legal
justice compels consideration of vesting a residuary
power in the Judges to act ex debito justitiae where
the tragic sequel otherwise would be wholly
inequitable. Justice is the goal of jurisprudence,
processual, as much as substantive...
No person has a vested right in any course of
procedure. He has only the right of prosecution or
defence in the manner for the time being by or for
the court in which the case is pending, and if, by an
Act of Parliament the mode of procedure is altered,
he has no other right than to proceed according to
the altered mode. ... A procedural law should not
ordinarily be construed as mandatory; the
procedural law is always subservient to and is in aid
to justice. Any interpretation which eludes or
frustrates the recipient of justice is not to be
followed. ...
Processual law is not to be a tyrant but a servant,
not an obstruction but an aid to justice. Procedural
prescriptions are the handmaid and not the mistress,
a lubricant, not a resistant in the administration of
justice.".
Reliance could also be placed in the case of Ashok
Kumar Kalra (supra) and paragraph 50 of which reads as
under :
"50.It is well settled that procedural rules should
not be interpreted so as to defeat justice, rather
Patna High Court C.Misc. No.1780 of 2019 dt.14-05-2025
than furthering it. This is because procedural law
is not meant to serve as a tyrant against justice,
but to act as a lubricant in its administration.
Thus, when courts set out to do justice, they should
not lose sight of the end goal amidst technicalities.
In some cases, this means that rules that have
traditionally been treated as mandatory, may be
moulded so that their object and substantive
justice is not obstructed. It would be apposite to
remember that equity and justice should be the
foremost considerations while construing
procedural rules, without nullifying the object of
the legislature in totality. Thus, rules under the
Limitation Act which may allow for filing of a
belated counterclaim up to a long period of time,
should not be used to defeat the ends of justice."
21. Thus, in the peculiar facts and circumstances of
the present case, I have no hesitation in holding that the learned
trial court has passed a proper order and there is no excess of
jurisdiction and therefore, the impugned order dated 17.09.2019
is affirmed.
22. Accordingly, the present petition stands dismissed.
23. However, the learned trial court would give ample
opportunity to the plaintiff/petitioner for rebuttal of the counter
claim as permissible in accordance with law.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE 04.03.2025
Uploading Date 15.05.2025
Transmission Date N/A
