Sanjay vs Dashrath
2023 Latest Caselaw 8820 Raj

[2023:RJ-JD:35020]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 2482/2020

Sanjay S/o Shri Krishna Rav, Aged About 40 Years, B/c Maratha,
Resident Of Nimbahera, Tehsil Nimbahera, District Chittorgarh
(Raj.).
                                                                         ----Petitioner
                                       Versus
Dashrath S/o Shri Kishan Lal, B/c Meghwal, Resident Of Shiv
Colony,      Dhabeshwar           Road,         Tehsil        Nimbahera,         District
Chittorgarh.
                                                                     ----Respondent


For Petitioner(s)             :    Mr. S.L Jain
For Respondent(s)             :    Mr. Sanjay Nahar



               HON'BLE DR. JUSTICE NUPUR BHATI

                                  JUDGMENT

Reserved on:                                                         10/10/2023
Pronounced on:                                                       30/10/2023

1.    Though     the    matter       was      listed     in    'Orders     on    Interim

Application', but on the joint request of both the counsels for the

parties, the matter is heard finally today itself.

2. The present writ petition is preferred under Article 227 of the

Constitution of India, claiming following reliefs:

"It is therefore, most respectfully prayed that this Hon'ble Court may by an appropriate writ, order or direction in nature of certiotari be pleased to:-

i) Quash and Set aside the impugned order dated 02.12.2019 (Annexure-5), passed by the Court of Additional District Judge No. 1, Nimbahera in C.O.S No. 36/2012; and

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ii) Dismiss the application filed by the non-petitioner/Defendant under Order 6 Rule 17 of C.P.C, with costs throughout; and

iii) Any other appropriate writ, order or direction which the Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY."

3. The factual matrix of the case in brief is that that an

agreement to sale was executed between the Petitioner-Plaintiff

and Respondent-Defendant on 19.06.2008 for a consideration of

Rs. 3,14,101/- wherein the Petitioner-Plaintiff agreed to sell his

house for a sum of Rs 3,14,101/- out of which Rs. 1,05,000/- was

paid as advance and the possession was handed over to the

Respondent-Defendant and the remainder of the amount was

agreed to be paid by the Respondent-Defendant to the Petitioner-

Plaintiff in November, 2008, however, the Respondent-Defendant

advanced a sum of Rs. 60,000/- on different dates and the

remaining amount was not paid and therefore, the Petitioner-

Plaintiff instituted Suit dated 02.04.2012 (Annexure-1) for Eviction

and Mesne Profits for non- performance of the part of the

agreement by the Respondent-Defendant and the agreement

being rescinded.

4. The Respondent-Defendant was served notices of the suit on

07.04.2012 and the Respondent-Defendant filed his written

statement on 14.08.2012 (Annexure-2).

5. The Respondent-Defendant filed an application dated

28.02.2015 (Annexure-3) under Order 6 rule 17 of the Code of

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Civil Procedure (hereinafter referred to as 'CPC') seeking to make

amendment in the written statement to the extent of raising

counter-claim for Specific Performance of the agreement.

6. The Trial Court vide order dated 03.12.2019 (Annexure-5)

allowed the application of the Respondent-Defendant.

7. Hence, being aggrieved of the impugned order dated

03.12.2019, the Petitioner-Plaintiff has preferred the instant Writ

Petition.

8. The learned counsel for the petitioner submitted that:

(A) the Learned Trial Court committed grave illegality and

material irregularity while allowing the application of the

Respondent-Defendant, in as much as the Non-Petitioner by way

of amendment has sought to claim Specific Performance of

agreement and the valuation of the counter claim has been

pegged at Rs.3,14,101/-. As per the provisions under Section 15

of CPC:

"Every suit shall be instituted in the court of the lowest grade competent to try the suit".

and the Rajasthan Civil Court (Amendment) Act, 2014 (hereinafter

referred to as 'the Act of 2014') was enacted whereby amendment

in Rajasthan Civil Court Ordinance, 1950 (hereinafter referred to

as 'the Ordinance of 1950') was brought and according to the

provisions of amendment to Section 19 of the Ordinance of 1950,

the pecuniary Jurisdiction of the Senior Civil Judge was

determined as to shall have jurisdiction to hear and determine any

suit or original proceedings of a civil nature of which the value

does not exceed five lakh rupees and the suit instituted by the

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petitioner is pending before the Court of Additional District Judge

No. 1. Nimbahera (as per the proviso of the amendment) and the

counter-claim presented by the respondent has been valued as Rs.

3,14,101/- which as per the amendment, is triable by the court of

the lowest pecuniary jurisdiction, which, in the present situation,

is the Senior Civil Judge, thus, the amendment application dated

28.02.2015 (Annexure-3) in the pleadings under Order 6 Rule 17

of CPC could not have been permitted by the learned trial court

and therefore, the impugned order deserves to be quashed and

set aside on this ground.

(B) the learned Court below committed manifest error apparent

on the face of the record while allowing the application dated

28.02.2015 (Annexure-3) of the Respondent for amendment in

the pleadings, by which the Respondent has raised the Counter

Claim and it is a settled law that the Principle of Relating Back

applies to all amendments in the pleadings permitted by the

Courts, i.e., an amendment is deemed to have been incorporated

in the plaint/written statement from the date when the plaint or

written statement is registered and not from when the application

was presented and also, a Counter-Claim is treated as a plaint and

as thus, the same is registered separately.

(C) the amendment in the pleadings proposed by the

Respondent is neither bona fide nor the same has been preferred

diligently by the Respondent and is not in consonance with Proviso

of Order 6 Rule 17 of CPC, which reads as follows:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the

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conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

the words 'due diligence' have been incorporated signifying that

the party seeking amendment ought to be diligent while raising all

issues and an application seeking amendment ought not to be

made in a casual manner and also, the Respondent was well

aware throughout that his possession is illegal and no prayer had

been made for enforcing of the alleged agreement.

(D) the learned trial Court while deciding the application of the

amendment in pleadings filed by the Respondent has travelled

beyond the scope of the application, and without adverting to the

averments of the application and the reply, has decided the

application in an arbitrary and invidious manner and it is a clear

law that while deciding an application for amendment of pleadings

the truth and merits of the proposed amendment cannot be

considered and the only thing which needs to be considered is that

whether the proposed amendment is necessary and is it made

bona fide and without any delay and whether if the said

amendment is allowed and it should not cause prejudice to the

other side which cannot be compensated in terms of costs, but the

learned Trial Court has failed to do so.

(E) the learned Court below has not considered any of the

contentions made by the Petitioner-Plaintiff and has simply

allowed the amendment in pleadings application filed by the

Respondent-Defendant.

9. The learned counsel for the Respondent submitted that:

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(A) the Counter-Claim can be filed even after the filing of Written

Statement but before the issues are framed and by the Court and

in the present case, the issues were framed in the year 2023 and

the Counter-Claim was filed dated 28.02.2015 (Annexure-3) and

therefore, the Counter Claim is filed within the limitation period.

(B) no substantial procedural developments have transpired in

the suit in the court below, a fundamental prerequisite for

initiating a Counter-Claim and consequently, the Respondent-

Defendant act of filing a Counter-Claim can be construed as

entirely justified, as there has been no infringement of legal

protocol in this regard.

(C) there exists no discernible pecuniary disparity between the

litigation for specific performance and the Petitioner-Plaintiff's suit

and furthermore, the learned counsel for respondent submitted

that the petitioner failed to interpose any objections concerning

the pecuniary jurisdiction of the court during the proceedings

before the learned trial court and it is firmly established in

jurisprudence that any contentions pertaining to the court's

pecuniary jurisdiction must be promptly raised in the initial stages

of the legal proceedings before the court presiding over the

matter.

10. The learned Counsel for the respondent while submitting on

the limitation period placed reliance upon the judgment dated

12.10.2022 passed by Hon'ble Apex Court in Civil Appeal No.

7203/2022 in Mahesh Govindji Trivedi v. Bakul Maganlal

Vyas & Ors., in which the Hon'ble Apex Court allowed a Counter-

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Claim filed even after the delay of 13 years, the relevant portion

of the judgment reads as:

"13. In Ashok Kumar Kalra (supra), the 3-Judge Bench of this Court essentially considered the question on reference as to whether it is mandatory for a counter-claim of the defendant to be filed along with the written statement. While answering this question, this Court underscored the basic principles that procedural law should not be construed in such a way that it would leave court helpless; and that a wide discretion had been given to the Civil Court regarding the procedural elements of a suit. Having said so, this Court observed that a counter-claim is designed to avoid multiplicity of proceedings; that time limit for filing a counter-claim is not explicitly provided for but there is limitation as to the accrual of the cause of action. However, the majority opinion has been that the defendant cannot be permitted to file counter-claim after the issues are framed and the suit has proceeded substantially. It was observed and held in the lead judgment, inter alia, as under: -

"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 miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has

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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.

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

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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."

14. 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 counter-claim 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. Indisputably, the counter- claim was filed on 07.09.2018 and until that date, issues had not been framed in the suit. In fact, the issues were framed only on 05.12.2018, the very date on which the learned Single Judge in the first round of these proceedings took the counter-claim off the record for no permission/leave having been sought for its presentation.

In appeal against the order dated 05.12.2018, the Division Bench permitted filing of the requisite application seeking permission to file the counter-claim, while taking note of the submissions of the plaintiffs-respondents that they will not raise an objection to such application on the ground that the issues had already been framed and documentary evidence had been presented; and the Division Bench expected the learned Single Judge to deal with such an application on its own merits. Pursuant to the liberty so

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granted by the Division Bench, the appellant moved the application seeking permission to place the counter-claim on record and in support thereof, filed a detailed affidavit stating specific reasons for which the counter-claim was sought to be filed, including that of avoiding the multiplicity of proceedings. The appellant also pointed out the fact that he was earlier engaged in the dispute concerning succession to the property, which came to be settled in his favour only in the year 2017. The learned Single Judge, while passing the order dated 02.05.2019, did not elaborate much on the other aspects but pointed out the reason for accepting the prayer of the appellant that it would avoid multiplicity of proceedings; and in all fairness to the plaintiffs-respondents, kept all their defences, including as to limitation, specifically open. The said order dated 02.05.2019, even if passed by the learned Single Judge on the very first day of consideration of the application moved by the appellant, had been a just and proper order which was conducive to the proper progression of the proceedings while avoiding multiplicity of litigation. There was no justified reason for the Division Bench to have interfered with the order so passed by the learned Single Judge."

11. The learned counsel of petitioner in rejoinder arguments

submitted that the valuation of both the suits can not be taken

together and if it is, then it would not fall in the pecuniary

jurisdiction of the trial Court and also submitted that the cause of

action has to be seen, i.e; when the cause of action arose shall be

the time before the defence is filed by the defendant. Order 8 Rule

6A of CPC reads as:

"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

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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 pro-nounce 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."

12. The learned counsel for petitioner in rejoinder arguments

further submitted that there has been time limit of 3 years

prescribed under the Limitation Act, 1963 (hereinafter referred to

as 'the Act of 1963') for the filing of the suits for specific

performance and the Counter-Claim filed by the Respondent-

Defendant is after the expiration of the prescribed period of

limitation and thus, the Counter-Claim filed by the Respondent-

Defendant is barred by limitation.

13. The learned counsel for the petitioner in rejoinder arguments

placed reliance upon the judgment dated 19.11.2019 passed by

Hon'ble Apex Court in SLP(C) NO. 23599/2018, Ashok Kumar

Kalra v. Wing Cdr. Surendra Agnihotri & Ors., wherein the

Court held that:

"20. The decision of this Court in Bollepanda P. Poonacha v.K. M. Madapa, (2008) 13 SCC 179 is also significant in

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thisregard. Referring to Ramesh Chand Ardawatiya (supra), itacknowledged that belated counterclaims were to bediscouraged, and called upon the Court to consider questions ofserious injustice and irreparable loss while permitting any suchclaim. However, in Bollepanda (supra), the Court did not havean occasion to expound further on this proposition, as thecounterclaim had been rejected on the basis that its cause ofaction had arisen after the filing of the written statement.

21. It was in Gayathri Women's Welfare Association v. Gowramma, (2011) 2 SCC 330, that this Court once again had the occasion to look into the filing of a belated counterclaim. In this case, filing of the initial counterclaim was not in challenge. Instead, the Court was considering the effect of an amendment to an existing counterclaim. While the Trial Court had refused to allow such an amendment, the High Court had granted the same. Reiterating the concerns noted in Ramesh Chand Ardawatiya(supra), this Court held as follows:

"44. The matter herein symbolises the concern highlighted by this Court in Ramesh Chand [(2003) 7SCC 350]. Permitting a counterclaim at this stage would be to reopen a decree which has been granted in favour of the appellants by the trial court. The respondents have failed to establish any factual or legal basis for modification/nullifying the decree of the trial court."

The Court also relied on Rohit Singh (supra) and observed that a counterclaim cannot be filed after the framing of issues.

22. In Vijay Prakash Jarath v. Tej Prakash Jarath, (2016) 11 SCC 800, this Court further refined the limitation in Rohit Singh (supra) that counterclaims cannot be raised after the issues are framed and the evidence is closed. In the said case, even though the issues had been framed, and the case was in the early stages of recording of the plaintiff's evidence, a

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counter claim filed at that point was allowed, as no prejudice was caused to the plaintiff.

23. The above discussion lends support to the conclusion that even though Rule 6A permits the filing of a counterclaim after the written statement, the Court has the discretion to refuse such filing if it is done at a highly belated stage. However, in my considered opinion, to ensure speedy disposal of suits, propriety requires that such discretion should only be exercised till the framing of issues for trial. Allowing counterclaims beyond this stage would not only prolong the trial, but also prejudice the rights that may get vested with the plaintiff over the course of time.

At the same time, in exceptional circumstances, to prevent multiplicity of proceedings and a situation of effective retrial, 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. Ifa counterclaim is brought during such period, a new issue canstill be framed by the Court, if needed, and evidence can berecorded accordingly, without seriously prejudicing the rights ofeither party to the suit.

             At   this   juncture,         I     would     like     to    address       the
             observation         in    Rohit        Singh         (supra)        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."

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14. Heard learned counsel for the parties and perused the

material on record as well as the judgments cited at bar.

15. In the present case, the counter-claim was filed by way of

seeking amendment in the written statement under Order 6 Rule

17 CPC. The Hon'ble Supreme Court, in the case of Mahesh

Govindji Trivedi (supra), has clearly held that a counter-claim is

designed to avoid multiplicity of proceedings and the time limit for

filing a counter-claim is not explicitly provided for but there is

limitation as to the accrual of the cause of action. However, the

defendant cannot be permitted to file counter-claim after the

issues are framed and the suit has proceeded substantially. The

learned court below, in clear terms, has observed that the suit was

filed on 19.03.2012, which was registered on 02.04.2012 and the

summons were served upon the respondent-defendant on

07.04.2012 and the application for amendment in the written

statement was filed on 27.02.2015, i.e. within a period of three

years after service of summons on the respondent - defendant.

The court below also observed that in the suit for eviction pending

below issues have yet not been framed, thus the suit has not

proceeded substantially. The learned trial Court has also observed

that the application for amendment in the written statement has

been filed within limitation and if the amendment sought is not

allowed, the same will lead to multiplicity of proceedings.

16. Moreso, the provisions of Rule 6A of Order 8 CPC provides

that the plaintiff has every right to file written statement to the

counter-claim and thus, the petitioner will have every opportunity

to rebut the counter-claim by leading evidence, oral and

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documentary and thus, no prejudice would be caused to the

petitioner-plaintiff.

17. So far as the issue with regard to pecuniary jurisdiction of

the court below is concerned, the petitioner-plaintiff can raise the

same while filing written statement to the counter-claim.

18. This Court finds that in the present case, the issues have not

yet been framed and no prejudice is going to be caused to the

petitioner-plaintiff as the suit has not proceeded substantially and

evidence is yet to be led.

19. In view of the above, this Court does not find any merit in

the writ petition and the same is, therefore, dismissed being

bereft of merit.

20. The stay application and all other pending applications, if

any, also stand dismissed.

(DR. NUPUR BHATI),J

-/skm/-

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