Telangana High Court
M.A. Hakim Sayeed vs M.A.Aleem Ahmed on 5 March, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.2636 OF 2024
ORDER:
This Revision Petition is filed assailing the order dated
19.06.2024 passed in I.A.No.368 of 2024 in O.S.No.1972 of 2022
on the file of the VI Junior Civil Judge, City Civil Court,
Hyderabad, whereunder an application filed seeking to condone
delay of 352 days in filing the Counter Claim in the suit was
dismissed.
2. Heard Ms. Sowmya Sanisetty, learned counsel representing
Sri Venkateswarlu Sanisetty, learned counsel for petitioner and
Sri L.Harish, learned counsel for respondent No.1.
3. Brief factual matrix of the case is that respondent No.1
herein/plaintiff filed suit for mandatory injunction directing
respondent Nos.1 and 3 herein to remove the penthouse, i.e., suit
'B' schedule property, claiming the same to be an unauthorised
construction. The petitioner, who is defendant No.1 in the suit,
filed written statement denying the claim in the suit. Thereafter,
basing on pleadings of both parties, the trial Court framed issues
for trial, trial commenced, P.W-1 was examined in chief. The
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matter was coming up for cross-examination of P.W-1, at that
stage, the petitioner herein filed an application for condonation of
delay of 352 days in filing Counter Claim.
4. Respondent No.1 herein filed counter resisting the said
application. The trial Court by the impugned order dated
19.06.2024 observed that defendant No.1 cannot be permitted to
file counter claim after framing of issues and when the matter is at
the stage of cross-examination of P.W-1 and accordingly, the trial
Court was not inclined to condone the delay of 352 days in filing
Counter Claim and dismissed the application.
5. Learned counsel for the petitioner contended that there is no
limitation as such for filing Counter Claim, however, Counter
claim was filed by the petitioner along with an application to
condone delay of 352 days, calculating the delay from the date of
filing of written statement. She further contended that though
issues are framed and trial has commenced, there is no bar to file
Counter Claim and the same may be filed at any stage during the
pendency of the suit and hence, the impugned order is
unsustainable. She further contended that the trial Court has not
properly construed the legal position and the reasons set out by the
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petitioner for condonation of delay and thus, prayed to allow the
Revision Petition.
6. Per contra, learned counsel for respondent No.1 contended
that defendant No.1 filed written statement in the month of March,
2022, the trial Court framed the issues for trial, after chief-
examination of P.W-1 was completed, the petitioner has taken time
for cross-examination of P.W-1 and thereafter, came up by filing
Counter Claim along with application to condone delay of 352 days
in filing the same. Learned counsel further contended that Counter
Claim ought to have been filed along with the written statement
and in the present case, the Counter Claim is filed after
commencement of trial, that too, when the matter is coming up for
cross-examination of P.W-1, therefore, the trial Court has rightly
declined to condone delay in filing the Counter Claim and rejected
the application. He further contended that no grounds are made out
by the petitioner to interfere with the well-reasoned order of the
trial Court and prayed to dismiss the Revision Petition.
7. In support of his submissions, learned counsel for respondent
No.1 relied upon the judgment of the Hon'ble Apex Court in
Ashok Kumar Kalra Vs. Wing Cdr. Surendra Agnihotri and
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others 1, wherein two judges of a three-judge Bench held that a
Counter Claim is designed to avoid multiplicity of proceedings and
no time limit for filing Counter Claim is exclusively provided for
in Code of Civil Procedure, however, the Counter Claim cannot be
filed at a belated stage and any Counter Claim filed after framing
of issues cannot be entertained.
8. However, one of the judges of three-judge Bench while
concurring with the opinion of other two judges that Counter Claim
can be filed till the framing of issues for trial, further held that in
exceptional circumstances, a Counter Claim may be permitted to be
filed after a written statement till the stage of commencement of
recording of evidence.
9. In the case on hand, admittedly, written statement is filed,
issues are framed, trial has commenced, P.W-1 was examined in
chief and the matter was coming up for cross-examination of
P.W-1, at that stage, the petitioner herein filed Counter Claim in
the suit, which per se is not maintainable in view of the laid down
by the Hon'ble Supreme Court in Ashok Kumar Kalra's case
(cited supra). Therefore, this Court does not find any illegality or
(2020) 2 SCC 394
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irregularity in the impugned order warranting interference by this
Court.
10. Accordingly, Revision Petition is dismissed. No costs.
11. Miscellaneous petitions pending, if any, shall stand closed.
No costs.
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LAXMI NARAYANA ALISHETTY, J
Date:05.03.2025
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