Telangana High Court
Bosle Mohan Rao Patel vs Dyawar Nagesh Alias Dyawar ... on 3 October, 2023
Bench: Surepalli Nanda
1
CRP_2442_2023
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
C.R.P.NO.2442 OF 2023
Between:
Bosle Mohan Rao Patel and another
... Petitioners
And
Dyawar Nagesh @ Dyawar Nageshwer Rao
... Respondent
JUDGMENT PRONOUNCED ON: 03.10.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : Yes
_________________
SUREPALLI NANDA, J
2
CRP_2442_2023
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
C.R.P.NO.2442 OF 2023
% 03.10.2023
Between:
# Bosle Mohan Rao Patel and another
..... Petitioners
And
$ Dyawar Nagesh @ Dyawar Nageshwer Rao
... Respondent
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr K.P.Vija Kumar
^ counsel for Respondent : Mr Vivek Jain
? Cases Referred:
2020(2) SCC 394
3
CRP_2442_2023
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HON'BLE MRS JUSTICE SUREPALLI NANDA
C.R.P.NO.2442 OF 2023
ORDER:
This civil revision petition is filed challenging the
propriety and legality of the order dated 27.06.2023 passed in
I.A.N.483 of 2022 in O.S.No.46 of 2018 on the file of the
Senior Civil Judge at Nirmal.
PERUSED THE RECORD
2. The impugned order dated 27.06.2023 passed in
I.A.N.483 of 2022 in O.S.No.46 of 2018 on the file of the
Senior Civil Judge at Nirmal, in particular, para 9, reads
as under:
"As seen in the present suit, the issues have been
framed and the suit is posted for trial. The counter
claim by the defendant is allowed before the defendant
has delivered his defence or before the time limited for
delivering his defence has expired. When the defendant
has delivered his defence and the time limit has expired
for delivering his defence, as such the petition to accord
leave to the petitioner to present the counter claim
(subsequent pleadings) is not maintainable. Hence, at
this stage, the petition to accord permission to receive
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the counter claim is not maintainable and liable to be
dismissed."
DISCUSSION AND CONCLUSION
DISCUSSION
3. The petitioners/defendant Nos. 2 and 1, filed I.A.No.483
of 2022 under Order 8 Rule 9 read with Section 151 C.P.C.
seeking grant of leave to file counter claim for declaration, and
recovery of possession and mandatory injunction as against
the suit claim of the respondent/plaintiff.
4. The plea of the petitioners is that the 1st petitioner
purchased 23 guntas of land in Survey No.178/A of Bainsa
Revenue Village under registered sale deed dated 10.02.2018
from the 2nd petitioner, but the respondent/plaintiff without
any manner of right whatsoever dispossessed him i.e. the 1st
petitioner and raised structures on the land and so it became
necessary to seek the counter claim.
5. The respondent/plaintiff filed counter seriously opposing
the petition contending, inter alia that the petition is not
maintainable since the counter claim is sought to be filed,
subsequent to the filing of the written statement, which is
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contra to the provision under Order 8 Rule 6A Sub Rule (1)
C.P.C. and that he validly purchased the suit land under
registered sale deed dated 21.01.1989 and that he is in
possession and enjoyment of the land. He alleged that the
alleged sale deed dated 10.02.2018 in favour of the 1st
petitioner is created though the land shown therein is not in
existence. The lower Court after considering the material on
record and after hearing both side dismissed the petition on
merits, aggrieved by the same, both the defendants filed the
present revision petition.
CONCLUSION:
6. As can be seen from the record the defendants filed
their written statement on 24.01.2019 and issues were framed
on 02.08.2022. The petition seeking leave of the Court to file
the counter claim was filed on 07.11.2019. It is therefore
clear that the counter claim is sought to be filed with the leave
of the Court long after filing of the written statement. Order 8
Rule 6 (A) clearly stipulates that a defendant may file counter
clam as against the claim of the plaintiff before the defendant
delivered his defence or before the time limited for delivering
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his defence has expired. Here the defendant filed the written
statement on 24.01.2019, whereas the counter claim is
sought to be filed nearly ten months after filing of the written
statement and more particularly after the issues were framed.
7. The Apex Court in the judgment dated 19.11.2019
reported in 2020(2) SCC page 394 in Ashok Kumar
Karla v Wing CDR Surendra Agnihotri and others at para
21 observed as under:
"We sum up our findings, that Order VIII Rule 6A of the
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.
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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.
8. From the above decision, it is evident that leave to
file counter claim cannot be sought for after framing of
issues.
9. Taking into consideration the aforesaid facts and
circumstances and the law laid down by the Apex Court
in the judgment dated 19.11.2019 reported in 2020(2)
SCC page 394 in Ashok Kumar Karla v Wing CDR
Surendra Agnihotri and others (referred to and
extracted above), this Court opines that the petitioners
are not entitled for grant of leave for filing the counter
claim by invoking the provision of Order 8 Rule 6A of
C.P.C. and accordingly, the civil revision petition is
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dismissed since the same is devoid of merits. However,
there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand
closed.
__________________
SUREPALLI NANDA, J
Date: 03.10.2023
Note: L.R.Copy to be marked.
b/o
kvrm
