High Court of Judicature at Allahabad
Case Law Search
Nazir Ahmad v. Mohammad Lukman And Others � - WRIT - C No. 69414 of 2005  RD-AH 14309 (21 August 2007)
Civil Misc.Writ Petition no.69414 of 05
Nazir Ahmad Vs. Mohd. Lukman & others
A suit for permanent injunction was filed by the petitioner against the defendants respondents 1 to 11. The plaintiff's case it is stated is that there was a Will dated 5.6.74 executed by the deceased Subrati the alleged owner of the property. A written statement was filed by defendants 1 and 2 denying the execution of the Will. Subsequently a counter claim was filed by defendants 1 and 2 setting up a title on the basis of two sale deeds executed by heir of the deceased Sabrati. The counter claim was taken on record by the trial court's order dated 14.8.01. The petitioner filed an application for recall of the order which was dismissed. The petitioner challenged the order in revision, which has been dismissed by an order dated 5.8.05. The petitioner has challenged both the orders in this petition.
Sri Faujdar Rai counsel for the petitioner submitted that the counter claim could not be taken on record as no amendment in the written statement was sought and no opportunity of hearing was given to the petitioner before the counter claim was taken on record.
In the counter affidavit it is alleged in para 6 that opportunity was given to the petitioner before the counter claim was taken on record. The petitioner had taken the objections in the recall application and also filed a revision and had put forward all the objections which were available to him against the counter claim being taken on the record and these objections have been considered and repelled.. The objection pressed before me is that the amendment in the written statement has not been sought. Sri Faujdar Rai relied upon a decision of this court in 1981 ALJ 641, Shiv Charan Vs. Union of India which was a case under the U.P.Minor Mineral Concessions Rules and in which it was held that the prescribed procedure is to be followed. Order 8, Rule 6A of the Code Civil Procedure permits the defendant to file a counter claim in respect of a cause of action which has accrued before the filing of the written statement or before the date granted by the court for filing the written statement. The sale deeds which are said to have been executed in favour of the defendants on the basis of which the defendant claims to be the owner were executed before the written statement was filed. The cause of action which is the basis of the counter claim claims arose before the written statement was filed. It has been found that the claim is not time barred. In the circumstances the counter claim could be taken on record. Order 8 Rule 6A CPC does not specifically provide that a counter claim should be incorporated in the written statement. But the rule provides that the defendant in addition to his right of pleading set off under Rule 6 set up a counter claim. Rule 6 provides that a set off may be pleaded by presenting a written statement containing the plea. It thus appears that a counter claim has to be set up in the written statement. The position becomes clearer from Rule 6B which provides that where a right is being claimed as a counter claim the written statement must contain a specific statement to that effect. It thus appears that a counter claim should usually be set up in the written statement itself. If however a counter claim is not set up in the original written statement it can even at a later stage be permitted to be set up by allowing amendment in the written statement or even permitting an additional written statement containing the counter claim to be filed. A counter claim is to be treated as a plaint in view of the provisions of sub Rule 4 of Order 8, Rule 6A. Separate court fee is required to be paid on it. It is therefore difficult to conceive of any substantial reason why a counter claim filed in the form of an additional written statement should not be permitted. However, it is not necessary to go into this aspect further as the respondent's counsel submits that the respondent can be permitted to incorporate the counter claim by amendment in the written statement.
Counsel for the respondents relied upon the decision of the apex court in Mahendra Kumar and another Vs. State of M.P. AIR 1987 SC1395, in which it has been held that a counter claim can be filed in respect of a cause of auction which has accrued before the filing of the written statement. He also relies upon the decision of the apex court in Andhra Bank Vs.ABN , Amro Bank NV & others JT 2007 (9) SC 244 in which it has been held that a written statement can be amended at any stage of the proceedings and mere delay is no ground to refuse the amendment. In Rakesh Kr.Singh Vs. VIIIth Addl.Disrict & Sessions Judge, Hardoi 2001(43) ALR 43, it was held on the facts of that case that the period of limitation for filing a counter claim is three years from the date the right to sue accrued. A counter claim can be filed even after filing of the written statement. There is no time limit prescribed for filing a counter claim if the cause of action on which the counter claim is based arose before the filing of the suit or before the expiry of the time given to the defendant for filing the written statement. The claim set up is however subject to the law of limitation. The objection of the petitioner that amendment of the written statement was not sought is now a mere technical one as the objections of the petitioner have been considered and repelled by the courts below and, in my opinion, rightly. The technical requirement if at all of incorporation of the counter claim in the written statement can be met by permitting the respondents to complete what would now be a mere formality to apply for incorporation of the counter claim in the written statement. Counsel for the respondents states that he may be granted opportunity to file such an amendment application which he will file within a month. In the circumstances liberty is granted to the respondents to make an application to incorporate the counter claim in the written statement. The application may be filed within one month.
Sri Faujdar Rai relied upon the provisions of Order 8, Rule 6C of the CPC which provides that an objection by the plaintiff for exclusion of the counter claim and relegating the defendants to file an independent suit can be taken. Needless to say despite the incorporation of the counter claim in the written statement, it would be open to the petitioner to raise such an objection under Order 8, Rule 6C of the CPC and if such objection is made the trial court shall decide it in accordance with law.
With these directions, the petition is disposed of.
Double Click on any word for its dictionary meaning or to get reference material on it.