Case Note & Summary
The petitioner, Vijaymala Sidling Doijad, filed a suit (Regular Civil Suit No.1056 of 2006) seeking injunction against the State of Maharashtra and the Tahasildar to restrain them from disturbing her possession over suit property Survey No.1573, and later against the Co-operative Housing Society (Defendant No.3) to prevent construction of a road or cutting of trees. The plaintiff claimed that the society had allotted a freehold plot to her predecessor-in-title and that she had full ownership rights. The defendants issued notices alleging change of user and encroachment. Issues were settled on 13 July 2009, and the plaintiff led evidence of two witnesses. Thereafter, the plaintiff amended the plaint in 2014, and the defendant society also amended its written statement and filed an additional written statement on 2 April 2014. On 14 July 2014, the defendant society filed an application (Exhibit 144) seeking permission to file a counter-claim, contending that the sale deeds through which the plaintiff claimed title were void ab initio as the then Chairman had no authority to execute them. The trial court allowed the application subject to payment of costs of Rs.2,000/-. The plaintiff challenged this order under Article 227 of the Constitution. The High Court examined the provisions of Order VIII Rule 6-A CPC and the judgment in Ashok Kumar Kalra v. Surendra Agnihotri. It held that there is no absolute bar on filing a counter-claim after the written statement; the court has discretion to permit it in exceptional circumstances. The amendment of the plaint after issues were settled constituted such an exceptional circumstance, as the defendant could not have earlier pleaded the counter-claim. The issue of limitation was a mixed question of fact and law to be decided at trial. The High Court dismissed the petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Counter-Claim - Order VIII Rule 6-A CPC - Belated Filing - The defendant sought to file a counter-claim after issues were settled and plaintiff's evidence partly recorded, following amendment of plaint. The trial court allowed it subject to costs. The High Court held that there is no absolute bar on filing counter-claim after written statement; the court has discretion to permit it in exceptional circumstances, such as when amendment of plaint necessitates new pleadings. The limitation issue is a matter for trial. (Paras 13-20) B) Civil Procedure - Counter-Claim - Limitation - Order VIII Rule 6-A CPC - The defendant's counter-claim sought declaration that sale deeds executed in 1964, 1980, 1998, and 2000 were void. The plaintiff argued it was barred by limitation. The High Court held that the question of limitation is a mixed question of fact and law to be decided at trial, not a ground to reject the counter-claim at the threshold. (Paras 10, 20) C) Civil Procedure - Counter-Claim - Amendment of Pleadings - Order VIII Rule 6-A CPC - The plaintiff amended the plaint after issues were settled, leading to the defendant's application for counter-claim. The High Court held that such amendment of plaint constitutes an exceptional circumstance justifying the filing of a counter-claim even after the stage of written statement, as the defendant could not have anticipated the amended claim earlier. (Paras 11, 19)
Issue of Consideration
Whether the trial court was justified in permitting the defendant to file a counter-claim under Order VIII Rule 6-A of the Code of Civil Procedure, 1908, after the settlement of issues and recording of plaintiff's evidence, and whether such counter-claim is barred by limitation.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing the defendant to file a counter-claim subject to payment of costs of Rs.2,000/-.
Law Points
- Counter-claim can be filed after written statement in exceptional circumstances
- Limitation for counter-claim is a triable issue
- Amendment of plaint after issues settled justifies counter-claim
