Pushpa Enterprises And Another vs Itc Limited
2024 Latest Caselaw 6662 P&H

Punjab-Haryana High Court

Pushpa Enterprises And Another vs Itc Limited on 1 April, 2024

Author: Alka Sarin

Bench: Alka Sarin

                                                                                                        -1-

                         CR No.1743 of 2024
                                                                                   2024:PHHC:042510


                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                         126                                          CR No.1743 of 2024 (O&M)
                                                                      Reserved on : 20.03.2024
                                                                      Pronounced on : 01.04.2024

                         Pushpa Enterprises & Anr.                                          ....Petitioners

                                                           VERSUS

                         ITC Ltd.                                                          ....Respondent

                         CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                         Present :     Mr. Deepam Raghav, Advocate for the petitioners.

                         ALKA SARIN, J.

1. The present revision petition has been filed by the defendant-

petitioners challenging the order dated 20.11.2023 dismissing the application

filed by them seeking permission to file counter-claim.

2. The plaintiff-respondent filed a suit for recovery of

Rs.1,51,56,669/- against the defendant-petitioners. The defendant-petitioners

were proceeded against ex-parte on 21.09.2021 and the case was adjourned

for ex-parte evidence. Thereafter, an application under Order IX Rule 7 CPC

was filed on behalf of the defendant-petitioners on 23.11.2021 which

application was allowed on 23.12.2021. On 22.03.2022 written statement

was filed on behalf of the defendant-petitioners. On the same date an

application under Order VII Rule 11 CPC read with Section 151 CPC was

also moved on behalf of the defendant-petitioners which was subsequently

withdrawn on 20.09.2022. After admission and denial of documents relied

upon by both the parties, on 12.12.2022 issues were framed and the suit was

adjourned to 12.01.2023. The evidence of the plaintiff-respondent was fixed

integrity of this judgment/order.

2024:PHHC:042510

for 23.01.2023. On 23.01.2023 the witness of the plaintiff-respondent was

present but on the request of learned counsel for the defendant-petitioners

his examination was not conducted. On 16.02.2023 the examination-in-chief

of witness of the plaintiff-respondent was recorded and his cross-

examination was deferred to 23.02.2023 and for examination of remaining

witnesses of the plaintiff-respondent. On 23.02.2023 the suit was adjourned

to 02.03.2023 and then to 16.03.2023. On 16.03.2023 the defendant-

petitioners filed an application seeking permission to file a counter-claim.

The counter-claim was filed along with the application but without the

requisite court fee. On 06.04.2023 the deficiency in court fee on the counter-

claim was made good by the defendant-petitioners and the plaintiff-

respondent also filed it's reply to the application seeking permission to file

counter-claim. Vide the impugned order the said application has been

dismissed. Hence, the present revision petition.

3. Learned counsel for the plaintiff-petitioner would contend that

the Trial Court erred in dismissing the application seeking permission to file

counter-claim. It is submitted that the defendant-petitioners could not file the

counter-claim earlier due to bad health and financial crisis and that there was

no intentional delay in filing the counter-claim. Reliance has been placed on

Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas & Ors. [2022 SCC

Online SC 1390] and Southern Ancillaries Pvt. Ltd. vs. Southern Alloy

Foundaries Pvt. Ltd. [AIR 2003 Mad 416].

integrity of this judgment/order.

2024:PHHC:042510

4. Heard.

5. The Trial Court dismissed the application seeking permission to

file the counter-claim while placing reliance on the decision of the Hon'ble

Supreme Court in the matter of Ashok Kumar Kalra vs. Wing Cdr.

Surendra Agnihotri & Ors. [2020 (1) RCR (Civil) 255 = (2020) 2 SCC

394] and a decision of this Court in Jaideep Kaur & Anr. vs. Gurmail

Singh through his LRs & Ors. [2021 (4) RCR (Civil) 68]. Issues in the

present suit were framed on 12.12.2022 and evidence of the plaintiff-

respondent started to be recorded on 16.02.2023. The application seeking

permission to file the counter-claim was filed on 16.03.2023 without proper

court fee which was made good on 06.04.2023. In Ashok Kumar Kalra's

case (supra) it was held that :

"18. As discussed by us in the preceding paragraphs,

the whole purpose of the procedural law is to ensure

that the legal process is made more effective in the

process of delivering substantial justice. Particularly,

the purpose of introducing Rule 6-A in Order 8 CPC is

to avoid multiplicity of proceedings by driving the

parties to file separate suit and see that the dispute

between the parties is decided finally. If the provision is

interpreted in such a way, to allow delayed filing of the

counterclaim, the provision itself becomes redundant

and the purpose for which the amendment is made will

be defeated and ultimately it leads to flagrant

integrity of this judgment/order.

2024:PHHC:042510

miscarriage of justice. At the same time, there cannot be

a rigid and hyper-technical approach that the provision

stipulates that the counterclaim has to be filed along

with the written statement and beyond that, the court

has no power. The courts, taking into consideration the

reasons stated in support of the counterclaim, should

adopt a balanced approach keeping in mind the object

behind the amendment and to subserve the ends of

justice. There cannot be any hard and fast rule to say

that in a particular time the counterclaim has to be filed,

by curtailing the discretion conferred on the courts. The

trial court has to exercise the discretion judiciously and

come to a definite conclusion that by allowing the

counterclaim, no prejudice is caused to the opposite

party, process is not unduly delayed and the same is in

the best interest of justice and as per the objects sought

to be achieved through the amendment. But however, we

are of the considered opinion that the defendant cannot

be permitted to file counterclaim after the issues are

framed and after the suit has proceeded substantially. It

would defeat the cause of justice and be detrimental to

the principle of speedy justice as enshrined in the

objects and reasons for the particular amendment to

CPC.

integrity of this judgment/order.

2024:PHHC:042510

xxx

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.

(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.

integrity of this judgment/order.

2024:PHHC:042510

(viii) Prejudice to the opposite party.

(ix) And facts and circumstances of each case.

(x) In any case, not after framing of the issues."

6. Thus, there is a clear-cut embargo on the filing of a counter-

claim after the issues have been framed, as in the present case. The evidence

of the plaintiff-respondent had also commenced. The decision in Mahesh

Govindji (supra) is distinguishable as in that case the issues had still not

been framed when the application seeking permission to file counter-claim

was moved. In the case of Southern Ancillaries (supra) a decision of the

Karnataka High Court was followed where it had been held that a counter-

claim cannot be permitted to be filed when once recording of evidence

commences.

7. In view of the above, I do not find any ground to interfere with

the impugned order. There is no illegality or irregularity in the exercise of

it's jurisdiction by the Trial Court. The present revision petition being

devoid of any merits is accordingly dismissed. Pending applications, if any,

also stand disposed off.

( ALKA SARIN ) 01.04.2024 JUDGE Aman Jain

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

integrity of this judgment/order.