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Code of Civil Procedure, 1908 – Or. VIII, r. 6A – Filing of counter-claim by defendant after submitting written statement – Embargo on, if any – Respondent No.1 filed suit for specific performance against the petitioner – Petitioner filed written statement – Thereafter, filed counter-claim – Trial court rejected the objections on filing of the counter-claim after filing of the written statement and framing of issues – High Court quashed the counter-claim – Petitioner approached the Supreme Court – Reference order passed by two-Judge Bench seeking clarification from larger bench as to the interpretation of Or. VIII, r.6A regarding the filing of counter-claim by defendant in suit – Answering the reference, held: Per N.V. Ramana, Mohan M. Shantanagoudar and Ajay Rastogi, JJ. To avoid multiplicity of proceedings, the counterclaim by way of r.6A was inserted in the CPC by 1976 Amendment Act – Or. VIII, r. 6A 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– However, 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 – Court has to take into consideration the outer limit for filing the counter-claim which is pegged till the issues are framed, after evaluating inclusive factors, which are only illustrative and not exhaustive, viz., period of delay; prescribed limitation period for the cause of action pleaded; reason for the delay etc. – Per Mohan M. Shantanagoudar, J. (Partly Supplementing and Partly Dissenting) Court may exercise its discretion and permit the filing of counter-claim after the written statement, till the stage of framing of the issues of the trial – However, in exceptional circumstances, the subsequent filing of counter-claim may be permitted till the stage of commencement of recording of the evidence on behalf of the plaintiff as there is no significant development in the legal proceedings during the intervening period between framing of issues and commencement of recording of evidence – Code of Civil Procedure (Amendment) Act of 1976 – Code of Civil Procedure (Amendment) Act, 2002 – Limitation Act, 1963 – s.3(2)(b)(ii).Code of Civil Procedure, 1908 – Or. VIII – Scheme of – Held: Whole scheme of Or. VIII unequivocally points out at the legislative intent to advance the cause of justice by placing embargo on the belated filing of written statement, set-off and counter-claim. Code of Civil Procedure, 1908 – Filing of belated counterclaim – Factors to be considered – Discussed. Jurisprudence – Procedural justice vis-a-vis substantive justice – Balanced approach towards – Discussed – Civil Procedure Code, 1908 – Or. VIII, r. 6A – Limitation Act, 1963. Code of Civil Procedure, 1908 – Or. VIII, rr. 6A, 9, 10 and Or. VI, r.17 – Power of Court under – Held: Per Mohan M. Shantanagoudar, J. (Supplementing) Conjoint and harmonious reading of rr. 6A, 9 & 10 of Or. VIII and Or. VI, r. 17, CPC reveals that the Court is vested with the discretion to allow the filing of counter-claim even after the filing of the written statement, as long as the same is within the limitation prescribed under the 1963 Act – Limitation Act, 1963.Code of Civil Procedure, 1908 – Or. VIII, r. 6A, 6B – Plea of respondent, relying on r.6B, that r.6A(1) requires that the cause of action for counter-claim should arise before the filing of the written statement – Held: Per Mohan M. Shantanagoudar, J. (Supplementing) Not agreed with, for two reasons- (i) It is possible that at the time of filing the written statement, the defendant is unaware of the facts giving rise to the cause of action for his counter-claim (ii) perusal of Or.VIII, r. 6B suggests that it is only limited to cases where the counter-claim is made along with the written statement – Provisions u/Or. VIII should not be read in isolation, but in a conjoint and harmonious manner – Rule 6B cannot be read as limitation on the Court’s discretion to permit the filing of belated counter-claim.Code of Civil Procedure, 1908 – Or. VIII, r.6, 6A(1), (4) – Plea that the limitation on filing of set-offs u/Or. VIII, r. 6 should be read into r. 6A(1) – Held: Per Mohan M. Shantanagoudar, J. (Supplementing) Untenable – Nature of a set-off and a counterclaim is different – Distinctions enumerated. |
