VIJAY PRAKASH JARATH Vs. TEJ PRAKASH JARATH
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2308-2309 of 2016, Judgment Date: Mar 01, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.2308-2309 OF 2016
(Arising out of SLP(C)Nos.8536-8537 of 2008)
VIJAY PRAKASH JARATH .......APPELLANT
VERSUS
TEJ PRAKASH JARATH .......RESPONDENT
WITH
CIVIL APPEAL No.2310 OF 2016
(Arising out of SLP(C)No.32118 of 2009)
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
Civil Appeal Nos.2308-2309 of 2016 (Arising out of SLP(C)Nos.8536-8537 of
2008)
1. The respondent before this Court – Tej Prakash Jarath filed
Suit No.608 of 1992 on 09.11.1992. In the aforesaid suit, defendants Nos.3
and 4 – Om Prakash Jarath (the father of the plaintiff in the suit) and
Vijay Prakash Jarath (the elder brother of the plaintiff) respectively,
filed written statements on 11.11.1992. Thereupon, issues came to be framed
on 18.10.1993. After the framing of the issues, the petitioners before this
Court (i.e. defendant Nos.3 and 4 in the original suit), filed a counter-
claim on 17.06.1996 i.e. almost two and a half years after the framing of
the issues.
2. The trial court, vide its order dated 28.10.1996, accepted the
aforesaid counter-claim. The above order dated 28.10.1996, came to be
assailed by the respondent-plaintiff-Tej Prakash Jarath through Civil
Miscellaneous Writ Petition No.1266 of 2001, before the High Court of
Uttarakhand at Nainital (hereinafter referred to as `the High Court’). The
High Court relying upon the judgment of this Court in Rohit Singh & ors.
vs. State of Bihar (Now State of Jharkhand) & Ors., (2006) 12 SCC 734,
concluded, that the counter-claim filed by the petitioner-defendant Nos.3
and 4 before the trial court, was not legally acceptable. The order passed
by the High Court dated 02.01.2008, recording the above conclusion, has
been assailed through the instant special leave petitions.
3. Leave granted.
4. Before adverting to the merits of the controversy, we would
first endeavour to deal with the issues as to whether the High Court
correctly applied the judgment rendered by this Court in Rohit Singh’ case
(supra), to the controversy in hand. In order to appreciate the
conclusions drawn by this Court in Rohit Singh’s case (supra), the
following observations (relating to the facts and conclusions) recorded
therein need to be taken into consideration:
“17. We shall first consider whether there was a counterclaim in the suit
in terms of Order 8 Rule 6A of the Code in this case. The suit was filed
against the Divisional Forest Officer and the State of Bihar as Defendants
1 and 2 on 26.2.1996 by Respondent No.6 herein. After the written
statement was filed by the defendants, issues were framed and the suit went
to trial. On 3.6.1996 and 6.6.1996 the evidence on the side of the
plaintiff was concluded. On 14.6.1996 the
evidence on the side of the defendants was completed. On 24.6.1996
arguments were concluded. Judgment was
reserved. 25.6.1996 was fixed as the date for pronouncing the judgment. The
judgment was not pronounced and it appears that the Judge was subsequently
transferred. Therefore, on 20.8.1996 arguments were again heard by the
successor Judge and judgment was reserved. 27.8.1996 was fixed as the date
for judgment. Apparently, it was not pronounced. It is thereafter that
Defendants 3 to 17 filed an application on 11.9.1996 for intervention in
the suit. We have already referred to the allegations in that application
for impleading filed. We only notice again that they claimed to be in
possession of the property and that their presence before the court was
necessary in order to enable the court to effectually and completely
adjudicate upon and settle all the questions involved in the suit. On
19.9.1996 the application for intervention was allowed. On 30.9.1996 a
written statement was filed by Defendants 3 to 12. We have already
summarised the pleas raised therein.
18. After this, the witnesses of the plaintiff were recalled and
permitted to be cross-examined by these Defendants. That was on 5.10.1996.
Again the witnesses for defendants 1 and 2, were recalled and they were
permitted to be cross-examined on behalf of these defendants. The evidence
on the side of Defendants 3 to 17 was let in. It commenced on 24.2.1997
and was closed on 30.1.1997. Thereafter, arguments were heard again and
the arguments on the side of the defendants including that of Defendants 3
to 17 were concluded on 4.3.1997. The suit was adjourned for arguments on
the side of the plaintiff. On 5.3.1997, the suit was dismissed for default
of the plaintiff. It was then restored on 29.5.1998. It was thereafter on
5.6.1998, that Defendants 3 to 17 filed an application for amending the
written statement. The amendment was allowed on 20.7.1998. There was no
order treating the amended written statement as a counter-claim or
directing either the plaintiff or Defendants 1 and 2 to file a written
statement or an answer thereto. Defendants 3 to 17 had questioned the
pecuniary jurisdiction of the trial court in their written statement. That
plea was permitted to be withdrawn on 4.2.1999. It is clear that after the
evidence was closed, there was no occasion for impleading the interveners.
Even assuming that they were properly impleaded, after they had filed their
written statement, the suit had gone for further trial and further evidence
including that of the interveners had been taken, the evidence again closed
and even arguments on the side of the interveners had been concluded. The
suit itself was dismissed for default only because on behalf of the
plaintiff there was a failure to address arguments. But the suit was
subsequently restored. At that stage no counter-claim could be entertained
at the instance of the interveners. A counter-claim, no doubt, could be
filed
even after the written statement is filed, but that does not mean that a
counter-claim can be raised after issues are framed and the evidence is
closed. Therefore, the entertaining of the so-called counter-claim of
Defendants 3 to 17 by the trial court, after the framing of issues for
trial, was clearly illegal and without jurisdiction. On that short ground
the so called counter-claim, filed by Defendants 3 to 17 has to be held to
be not maintainable.
19. As can be seen, what Defendants 3 to 17 did, was to merely amend
their written statement by adding a sentence to para 16 of the written
statement they originally filed. In para 16 it was only pleaded that those
defendants were claiming to be in peaceful possession of the suit lands
ever since the time of their predecessors. They wanted to add that they
had claimed acquisition of title based on long and uninterrupted possession
and they crave leave to get their title declared in the suit for which a
declaratory court fee is paid. It may be noted that not even a prayer was
sought to be added seeking a declaration of their title as is the normal
practice. It is, therefore, clear that on going through the original
written statement and the amendment introduced, that there was no counter-
claim in terms of Order 8 Rule 6A of the Code in the case on hand, which
justifies a trial of that counter-claim even
assuming that such a counter-claim was maintainable even if no relief was
claimed against the plaintiff in the suit but it was directed only against
the co-defendants in the suit. The counter-claim so called is liable to be
rejected on that ground as well.”
(emphasis is ours)
5. The factual position in the relied upon judgment, is not similar to
the factual position of the case in hand. In the present case, after the
issues had been framed, the plaintiff’s evidence had commenced to be
recorded. Though the same had not yet been concluded. In Rohit Singh’ case
(supra), on the other hand, not only were issues framed, and the evidence
of the rival parties, including the defendant recorded. Furthermore, on
several occasions, arguments were heard for the ultimate disposal of the
suit. And more than once, the judgment was also reserved, but then, on
account of transfer of the Judge, and for other reasons, evident from the
extract recorded hereinabove, judgment could not be pronounced. It is in
the aforesaid situation, that the counter claim filed by the defendants, at
such a belated stage, was considered to be, not sustainable in law. We are,
therefore, satisfied in holding, that the judgment rendered in Rohit
Singh’s case is clearly not applicable to the facts and circumstances of
this case.
6. Furthermore, learned counsel for the appellants had contended,
on the basis of observations recorded in para 18 (extracted above) in Rohit
Singh’s case (supra), that counter claim would not be permissible after
framing of the issues, and after the evidence is concluded. Even if the
above parameter is applied to the facts of the present case, it is
apparent, that the judgment rendered in Rohit Singh’s case (supra) would
not lead to the findings recorded by the High Court in the impugned order,
for the simple reason, that in Rohit Singh's case, evidence from both sides
was concluded, and even arguments had been heard, whereas, in the present
case, even though evidence on behalf of the respondent-plaintiff has
commenced, it has not yet concluded. The evidence on behalf of the
defendants is yet to commence.
7. Despite the conclusions recorded by us hereinabove, it is
relevant to record, that it was also the contention of the learned counsel
for the respondent-plaintiff, that the decision rendered by this Court in
Rohit Singh’s case, has been reiterated in Bollepanda P. Poonacha & Anr vs.
K.M.Madapa, (2008) 13 SCC 179, and a perusal of the above judgment,
would lead to the conclusion, that in the factual analysis, the conclusions
drawn by the High Court were justified. Our pointed attention was drawn to
the conclusions recorded in paragraph 15 of the above judgment, which is
extracted hereunder:
“15. A belated counter claim must be discouraged by this Court. See Ramesh
Chand Ardawatiya Vs. Anil Panjwani [(2003) 7 SCC 350]. We are, however, not
unmindful of the decisions of this Court where a defendant has been allowed
to amend his written statement so as to enable him to elaborate his defence
or to take additional pleas in support of his case. The Court in such
matters has a wide discretion. It must, however, subserve the ultimate
cause of justice. It may be true that further litigation should be
endeavoured to be avoided. It may also be true that joinder of several
causes of action in a suit is permissible. The Court, must, however,
exercise the discretionary jurisdiction in a judicious manner. While
considering that subservance of justice is the ultimate goal, the statutory
limitation shall not be overstepped. Grant of relief will depend upon the
factual background involved in each case. The Court, while undoubtedly
would take into consideration the questions of serious injustice or
irreparable loss, but nevertheless should bear in mind that a provision for
amendment of pleadings are not available as a matter of right under all
circumstances. One cause of action cannot be allowed to be substituted by
another. Ordinarily, effect of an admission made in earlier pleadings shall
not be permitted to be taken away. See State of A.P Vs. M/s. Pioneer
Builders, A.P. [(2006) 9 SCALE 520] and Steel Authority of India Ltd. Vs.
Union of India [2006 (9) SCALE 597] and Himmat Singh Vs. I.C.I. India Ltd.
[2008 (2) SCALE 152].”
(emphasis is ours)
Having perused the conclusions drawn in paragraph 15, extracted above, we
are satisfied, that the same are wholly inapplicable to the facts and
circumstances of this case, and that, the decision of the High Court could
not have been legitimately based on the conclusions recorded in paragraph
15, extracted above.
8. It is in these circumstances, that we advert to Order VIII Rule
6A of the Code of Civil Procedure, which is being reproduced below:
“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
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 pronounce 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.”
A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for
any doubt, that the cause of action in respect of which a counter claim can
be filed, should accrue before the defendant has delivered his defence,
namely, before the defendant has filed a written statement. The instant
determination of ours is supported by the conclusions drawn in Bollepanda
P. Poonacha & Anr vs. K.M.Madapa (supra), wherein this Court observed as
under:
“11. The provision of Order 8 Rule 6-A must be considered having regard to
the aforementioned provisions. A right to file counterclaim is an
additional right. It may be filed in respect of any right or claim, the
cause of action therefor, however, must accrue either before or after the
filing of the suit but before the defendant has raised his defence. The
respondent in his application for amendment of written statement
categorically raised the plea that the appellants had tresspassed on the
lands in question in the summer of 1998. Cause of action for filing the
counterclaim inter alia was said to have arisen at that time. It was so
explicitly stated in the said application. The said application, in our
opinion, was, thus, clearly not maintainable. The decision of Ryaz Ahmed
(supra) is based on the decision of this Court in Baldev Singh Vs. Manohar
Singh [(2006) 6 SCC 498].”
(emphasis is ours)
It is not a matter of dispute in the present case, that cause of action for
which the counter-claim was filed in the present case, arose before the
respondent-plaintiff filed the suit (out of which these petitions/appeals
have arisen). It is therefore apparent that the appellants before this
Court were well within their right to file the counter-claim.
9. It is quite apparent from the factual position noticed hereinabove,
that after the issues were framed on 18.10.1993, the counter claim was
filed by the appellants before this Court (i.e. by defendant Nos.3 and 4
before the trial court) almost two and a half years after the framing of
the issues. Having given our thoughtful consideration to the provisions
relating to the filing of counter claim, we are satisfied, that there was
no justification whatsoever for the High Court to have declined, the
appellant before this Court from filing his counter claim on 17.06.1996,
specially because, it is not a matter of dispute, that the cause of action,
on the basis of which the counter claim was filed by defendant Nos.3 and 4,
accrued before their written statement was filed on 11.11.1992. In the
present case, the respondent-plaintiff's evidence was still being recorded
by the trial court, when the counter-claim was filed. It has also not been
shown to us, that any prejudice would be caused to the respondent-plaintiff
before the trial court, if the counter-claim was to be adjudicated upon,
along with the main suit. We are of the view, that no serious injustice or
irreparable loss (as expressed in paragraph 15 of Bollepanda P.Pooncha's
case), would be suffered by the respondent-plaintiff in this case.
10. For the reasons recorded hereinabove, we set aside the impugned
order passed by the High Court dated 02.01.2008, and restore the order
passed by the trial court dated 28.10.1996.
11. The appeals are allowed in the above terms.
12. Needless to mention, that it shall be open to the respondent-
plaintiff to raise all pleas open to him through the written statement
which is filed by the respondent-plaintiff, to the counter claim.
Civil Appeal No.2310 of 2016 (Arising out of SLP(C)No.32118 of 2009)
13. Leave granted.
14. Learned counsel for the parties are agreed, that the controversy
raised in the instant appeal, is akin to the one adjudicated upon by this
Court in Vijay Prakash Jarath vs. Tej Prakash Jarath (Civil Appeal Nos.2308-
2309 of 2016, arising out of SLP(C)Nos.8536-8537 of 2008, decided by us on
01.03.2016. The instant appeal is accordingly allowed in terms of the
decision rendered by this Court in Vijay Prakash Jarath vs. Tej Prakash
Jarath decided on 01.03.2016.
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(C.NAGAPPAN)
NEW DELHI;
MARCH 1, 2016.
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