Smt. Lissy Sudesh And ANR. v. Smt. Mamta Dubey

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/5/2024 Smt Lissy Sudesh and another Vs.

Smt Mamta Dubey Mr. Gopala Binnu Kumar .... for the petitioner January 22, 2024 [SR] Item No.5 Affidavits of service are taken on record. It appears that the plaintiff/opposite party has refused service on two occasions. Refusal of service is good service. Hence the matter is taken up. The postal articles with the endorsement "Refused" is taken on record.

The order before this Court is an order by which the learned Joint Civil Judge (Senior Division), Port Blair rejected the prayer for acceptance of the written statement filed by the petitioner along with the counter claim. Such order was passed on January 04, 2024.

It is a matter of record that the written statement along with the counter claim was filed on August 27, 2019 and the same was kept with the records for acceptance, since then. Ultimately, after three and half years from the same having been filed in the Court, the Court refused to accept the written statement with the counter claim. The reason for such rejection was that no grounds had been made out for the delay in filing the written statement. The Court held that the defendant could not choose his own time to file the counter claim and should have abided by Order 8 Rule 6A of the Code

of Civil Procedure, which provides the outer limit within which the counter claim should be filed.

Mr. Gopala Binnu Kumar, learned advocate submits that the application for acceptance of the written statement along with counter claim, which is annexure as P/3 at page 38 clearly indicated why the same should be accepted. According to Mr. Kumar, the hearing of the application for injunction continued for a few years. Thereafter, the plaintiff filed further interlocutory applications for addition of party and one under section 80(2) of the Code of Civil Procedure. Such application was heard over a period of time. The injunction application was disposed of on January 24, 2019. A show cause was issued to the defendants. The defendants replied on March 29, 2019 and the reply to the show cause notice was accepted by the court on August 27, 2019.

Thus, there was no reason as to why the written statement and the counter claim could not be accepted by the court and the learned court had wrongly refused to accept the written statement and the counter claim. The ground that the defendants had failed to show reasonable cause as to why the written statement was filed belatedly, was not tenable in law.

Having considered Mr. Kumar's contention, this Court is of the view that, if answer to the show cause was accepted, in that event, the delay should have been condoned upon imposing conditions to compensate the plaintiff. Secondly, issues have not yet been framed as it appears from the records. Mr. Kumar vehemently submits that he has personally checked the records and the issues have not been

framed. An application for repair was allowed. The order impugned reveals that the suit was fixed for PH. The law is well settled, that counter claim can be filed at any stage, even after the written statement had been filed, but before the issues are framed. The plaintiff is not present before the court to oppose such application and to refute the contentions of Mr. Kumar.

In an adversarial form of litigation, the suit should not be heard and disposed of ex parte. Moreover, the defendants had been participating in the proceedings all along. The question whether a counter claim can be filed at any time, even after the filing of the written statement, is no more res integra. It has been held by the Hon'ble Apex Court that in exceptional cases the counter claim can be filed even after framing of issues, but before evidence has started. Reference is made to the decision of Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas & Ors. decided in Civil Appeal No.- 7203 of 2022. The Hon'ble Apex Court held as follows:- "13.

In Ashok Kumar Kalra (supra), the 3- Judge Bench of this Court essentially considered the question on reference as to whether it is mandatory for a counterclaim of the defendant to be filed along with the written statement. While answering this question, this Court underscored the basic principles that procedural law should not be construed in such a way that it would leave court helpless; and that a wide discretion had been given to the Civil Court regarding the procedural elements of a suit. Having said so, this Court observed that a counter-claim is designed to avoid multiplicity of proceedings; that time limit for filing a counter-claim is not explicitly 11 provided for but there is limitation as to the accrual of the cause of action.

However, the majority opinion has been that the defendant cannot be permitted to file counter-claim after the issues are framed and the suit has proceeded substantially.

'18. As discussed by us in the preceding paragraphs, 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 6-A in Order 8 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. If the provision is interpreted in such a way, to allow delayed filing of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice.

At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the court has no power. The courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the courts.

The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to CPC."

In the matter of Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Ors. reported in (2020) 2 SCC 394, one of the Hon'ble Judges of the bench was of the view that though the normal rule was that subsequent to filing of written statement, counter-claim could not be filed after issues had been framed, but under exceptional circumstances, counter-claim could be permitted to be filed even after issues had been framed, but before commencement of recording of plaintiff's evidence. His Lordship observed, inter alia, as follows:-

"25. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the Legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The Court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counter claim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counterclaim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff."

The impugned order is set aside. The written statement and the counter claim shall be accepted upon payment of cost of Rs.20,000/- to the plaintiff on account of the delay caused. The learned trial Court upon being satisfied that, the cost had been paid within two weeks from date, either to the plaintiff or to the plaintiff's advocate, shall formally accept the written statement and counter claim. The plaintiff shall be entitled to proceed in accordance with law and file a written statement to the counter claim within the period so fixed by the learned court below. This Court has not observed on the merits of the defendant's case and the counter claim.

The revisional application is accordingly disposed of on the above terms.

All parties are directed to act on the basis of the server copy of this order.

( Shampa Sarkar, J. )