Writ Petition No.529 of 2013

29th April, 2014

Petitioner Counsel: Shri ANTHONY D'SILVA
Respondent Counsel: Shri SANJAY MANGESHKAR

Cases Cited:
Nagnath Jagannath Lomate and Anr. Vs. Narsing Sambha More and ors, AIR 2009 Bom. 133 [Para 9,12,13]
Ramesh Chand Ardawatiya Vs. Anil Panjwani, 2003(4) ALL MR 1193 (S.C.) =AIR 2003 SC 2508 [Para 13]

JUDGMENT

JUDGMENT :- Heard

2. Rule, returnable forthwith.

3. Shri Mangeshkar, learned counsel waives notice on behalf of respondent no.1, who is only the contesting party to this petition.

4. The only point which arises for consideration in this case is:-

Whether the impugned order dated 16.2.2013 allowing counter claim of respondent no.1 passed by learned Civil Judge, Senior Division, Ponda is illegal and arbitrary?

5. The facts leading to the presentation of the present petition are stated in brief as under:-

The petitioners are the plaintiffs who had filed a suit against respondent no.1 and 2 for specific performance of the agreement dated 14.08.1996 and for damages. Plaint was presented in the month of August, 2007. It was resisted by respondent no.1 who filed his written statement dated 1.4.2008. The dispute between the petitioners and respondent no.1 revolves around the delivery of second flat, S- 2, as a part consideration of the agreement for sale of the suit plot executed between the petitioners and respondent no.1. This flat was having an area of 75 sq. mts and after construction of the building, it was revealed that this flat was having an area of 94 sq. mts and not of 75 sq. mts. Therefore, respondent no.1 requested the petitioners to pay up for the difference amount of the cost of this flat, which was of Rs.81,000/-. First flat that was to be delivered to the petitioners as part consideration was also having an area of 94 sq. mts instead of agreed area of 75 sq. mts and according to respondent no.1, it was delivered and at that time the petitioners had borne the difference amount of the price of the said flat. All these facts were incorporated by respondent no.1 in his written statement.

6. During the pendency of the suit, plaintiff no.1 died. In the written statement that was filed by respondent no.1 , no counter claim in respect of the claim of Rs. 81,000/- raised by respondent no.1 upon the plaintiffs or the petitioners was made. There was also a new development after the death of original plaintiff no.1 which required respondent no.1 to raise another claim in the nature of mandatory injunction directing the petitioners to execute their power of attorney in his favour for the purpose of carrying out remaining works of the building.

7. In view of the subsequent development and also need felt for setting up of a counter-claim specifically, the respondent no.1 filed an application under Order 8 Rule 6A of CPC for raising the counter claim in respect of mandatory injunction directing the petitioners to execute power of attorney in his favour and seeking damages to Rs.81,000/- as well as compensation of Rs. 60,000/- from the petitioners.

8. After hearing both sides, learned Civil Judge allowed the application on the ground that cause of action had accrued to respondent no.1 against the petitioners after filing of the suit by his order passed on 16.2.2013. It is this order which has been challenged for the present petition.

9. So far as the counter claim as regards mandatory injunction is concerned, the petitioners have not raised any objection to the same. Their objection is with regard to counter claim (b) which relates to the claim of damages in the sum of Rs.81,000/- and compensation of Rs. 60,000/- raised upon the petitioners/plaintiffs. According to the learned counsel for the petitioners provision of Rule 6A Order 8 CPC is very clear and it enjoins upon the defendant to set up a counter claim in respect of cause of action accruing to him before or after filing of the suit, but before the written statement has been filed. He submits that in the instant case, cause of action had arisen well before filing of the written statement and it was very well known to respondent no.1 when he filed the written statement. Therefore, the application could not have been granted by the learned Civil Judge. In support of his submission he places his reliance upon the case of Nagnath Jagannath Lomate and Anr. Vs. Narsing Sambha More and ors, AIR 2009 Bombay 133.

10. Learned counsel for respondent no.1 submits that there were several reasons why respondent no.1 could not make a counter claim against the plaintiffs at the time when written statement was filed. He submits that since respondent no.1 issued notices and had also requested the petitioners or the plaintiffs to pay up the difference price, he thought it appropriate to wait for a positive reply from the petitioners or the plaintiffs. When no such response was received by respondent no.1 from the petitioners, he thought it fit to raise the counter claim in respect of damages of Rs. 81,000/- and also compensation of Rs. 60,000/-. He further submits that there was also an agreement subsequently entered between the petitioners and respondent no.1 whereby the petitioners had agreed to pay up the difference price and, therefore, for deciding the real controversy involved between the parties, the counter claim has been rightly allowed to be raised by the trial Court.

11. Provision of Rule 6A Order 8 CPC is clear and leaves no ambiguity in one's mind as to the manner in which the counter claim can be raised and the time when it can be so raised by the defendants. Under this provision, a defendant can set up a counter claim against the plaintiff in respect of cause of action accruing to him before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

12. In the case of Nagnath Jagannath Lomate (supra) relied upon by the learned counsel for the petitioners, the phrase "delivering defence" has been interpreted to mean that the counter claim should be raised before or at the time of presentation of the written statement.

13. Learned Single Judge of this Court, relying upon the law laid down by the Apex Court in the case of Ramesh Chand Ardawatiya Vs/ Anil Panjwani, AIR 2003 SC 2508 : [2003(4) ALL MR 1193 (S.C.)], has held in the said case of Nagnath Jagannath Lomate (supra) that the counter claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case is set down for trial and more so, when the trial has already commenced.

14. It is thus clear that in respect of cause of action which has arisen before or after filing of the suit, the counter claim must be set up before or at the time of filing of the written statement and it can be refused to be taken especially when the trial of the suit has already commenced. Of course, this would not be applicable to a counter claim in respect of which cause of action has arisen after filing of the written statement.

15. In the instant case, it is seen from the averments made in the written statement itself, which are contained in paragraphs 4, 8 and 14, that the cause of action had already arisen when the written statement was filed. Since it was not taken up at that time, in view of the settled position of law discussed earlier, the counter claim in respect of a right to claim damages and compensation from the petitioners could not have been allowed at the belated stage after commencement of the trial in the suit. The impugned order, in so far as it relates to allowing of the application for raising of the counter claim (b) relating to damages and counter claim, is absolutely illegal and against settled provisions of law. Such an order cannot be sustained in law and it deserves to be quashed and set aside. The point is answered accordingly.

16. In the result, the Writ Petition is allowed and the impugned order is quashed and set aside only to the extent it allows the counter claim(b) relating to damages and compensation. Rule is made absolute in these terms. Writ Petition stands disposed of.

Petition allowed.