ASHOK KUMAR KALRA
WING CDR. SURENDRA AGNIHOTRI
PETITIONER- ASHOK KUMAR KALRA
RESPONDANT- SURENDRA AGNIHOTRI
Bench- Bench: M M Shantanagoudar, A Rastogi, N Ramana.
FACT OF THE CASE-
- A Dispute Arose Between the Petitioner (Defendant No. 2) And Respondent No. 1 (Plaintiff) Concerning Performance Of Agreement To Sell Dated 20.11.1987 And 04.10.1989.
- Respondent No.1 (Plaintiff) Filed The Suit For Specific Performance Against The Petitioner (Defendant No. 2) On 02.05.2008. Petitioner (Defendant No.2) Herein Filed A Written Statement On 2.12.2008 And Counterclaim On 15.3.2009, In The Same Suit.
- By Order Dated 12.05.2009, The Trial Court Rejected The Objections, Concerning Filing Of The Counterclaim After Filing Of The Written Statement And Framing Of Issues.
- Order Dated 15.05.2009 Was Challenged Before The High Court And The High Court Allowed The Same And Quashed The Counterclaim.
- Aggrieved By The Order Of the High Court, The Petitioner (Defendant No.2) Approached the Division Bench of This Court, Which Has Referred the Matter to a Three Judge Bench.
- Whether Order VIII Rule 6A Of The CPC Mandates An Embargo On Filing The Counterclaim After Filing The Written Statement
Legal Principal Applied–
Order VIII Rule 6A, Code of Civil Procedure
Order VIII Rule 6A:
Counterclaim by defendant-A defendant in a suit may, in addition to his right of pleading a setoff under rule 6, set up, by way of counterclaim 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 defense or before the time limited for delivering his defense 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.
- such counterclaim shall have the same effect as a crosssuit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.
- 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.
- the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.
CONTENTIONS OF THE PARTIES
- The learned counsel appearing on behalf of the petitioner submitted that the intent behind order viii rule 6a of the cpc is to provide an enabling provision for the filing of counter claim so as to avoid multiplicity of proceedings
- Therefore, no specific statutory bar or embargo has been imposed upon the court’s jurisdiction to entertain a counterclaim
- The learned counsel submitted that rules of procedure must not be interpreted in a manner that ultimately results in failure of justice.
- The learned senior counsel for the respondent submitted that the language of the statute, and the scheme of the order, indicates that the counterclaim has to be a part of the written statement.
- The learned senior counsel strengthened the above argument by relying on the statutory requirement that the cause of action relating to a counterclaim must arise before the filing of the written statement and submitted that the counterclaim must therefore form a part of the written statement.
- But in here the plaintiff is filling for counterclaim after the expiration of the period to do so as petitioner (defendant no.2) filed a written statement on 2.12.2008 and counterclaim on 15.3.2009, in the same suit which is not legal according to law.
- the constitutional bench of supreme court of India comprising of M M SHANTANAGOUDAR, A RASTOGI,N RAMANA passed a judgment on whether or not the plaintiff can claim for counterclaim given under order viii rule 6a of the CPC
- While considering the scope of rule 6a(1) of order viii of the cpc, has held that on the face of it, rule 6a(1) does not bar the filing of a counterclaim by the defendant after he had filed the written statement.
- As the cause of action for the counterclaim had arisen before the filing of the written statement, the counterclaim was held to be maintainable. this court further observed that under article 113 of the limitation act, 1963, the period of limitation is three years from the date of the right to sue accrues, when the period of limitation is not provided elsewhere in the schedule.
- As the counterclaim was filed within three years from the date of accrual of the right to sue, this court held that the learned district judge and the high court were wrong in dismissing the counterclaim in their previous judgment.
- The time limitation for filing of the counterclaim is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under order viii rule 6a.
- This does not mean that counterclaim can be filed at any time after filing of the written statement. as counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the limitation act, 1963 as the timebarred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of order viii rule 6a.
- that even if a counterclaim is filed within the limitation period, the trial court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated.
- We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. this court needs to recognize the practical difficulties faced by the litigants across the country. attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well
- 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:
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.
As Per The Recommendation Of The Law Commission Of India, To Avoid Multiplicity Of Proceedings, The Counterclaim By Way Of Rule 6A Was Inserted In The Civil Procedure Code. The Statement Of Objects And Reasons For Enacting The Code Of Civil Procedure (Amendment) Act, 1976 Were That A Litigant Should Get A Fair Trial In Accordance With The Accepted Principles Of Natural Justice And Every Effort Should Be Made To Expedite The Disposal Of Civil Suits And Proceedings, So That Justice May Not Be Delayed;
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 6A In Order VIII Of The 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. And Is This Case The Supreme Court Come To The Decision That Order VIII Rule 6A Of The CPC Does Not Put An Embargo On Filing The Counterclaim After Filing The Written Statement.