Case Note & Summary
The petitioner, Krishnaji Amarlal Kruplani, was the original plaintiff in a civil suit (RCS No.168/2008) filed in 2008 before the Second Joint Civil Judge, Senior Division, Jalgaon. He was a tenant in a building owned by the predecessors of the respondents-defendants. The plaintiff alleged that the building had become dilapidated and sought a mandatory injunction to permit him to access the top floor to carry out necessary repairs, and a declaration that the defendants shall not obstruct him. The defendants filed their written statement and additional written statement. Issues were settled on 27.03.2017. On 10.02.2021, the plaintiff filed his evidence affidavit and was cross-examined on 15.03.2021 and 20.03.2021. While cross-examination was in progress, on 08.06.2021, the defendants filed an application (Exhibit-133) under Order VIII Rule 6-A of the Code of Civil Procedure, 1908, raising a counterclaim under Section 16 of the Specific Relief Act, 1963. The trial court allowed the counterclaim subject to payment of costs of Rs.8000/- to the plaintiff. The plaintiff challenged this order in the High Court. The High Court heard both sides and held that Order VIII Rule 6-A CPC permits a counterclaim to be filed even after the written statement, as long as it is before the defendant has delivered his defence or before the time limited for delivering the defence has expired, and the court may allow it at any stage before the pronouncement of judgment. Since the counterclaim was filed before the conclusion of evidence, it was maintainable. The High Court dismissed the writ petition, upholding the trial court's order.
Headnote
A) Civil Procedure - Counterclaim - Order VIII Rule 6-A CPC - Maintainability - The defendants filed a counterclaim after the plaintiff's evidence-in-chief and partial cross-examination, but before conclusion of evidence. The trial court allowed the counterclaim subject to costs. The High Court upheld the order, holding that Order VIII Rule 6-A CPC permits a counterclaim to be filed even after the written statement, as long as it is before the defendant has delivered his defence or before the time limited for delivering the defence has expired, and the court may allow it at any stage before the pronouncement of judgment. The court noted that the counterclaim was filed before the conclusion of evidence and thus was maintainable. (Paras 6-10) B) Specific Relief - Mandatory Injunction - Section 16 Specific Relief Act, 1963 - Tenant's Right to Repair - The plaintiff-tenant sought mandatory injunction to access the top floor for repairs. The defendants' counterclaim sought possession and damages. The court did not decide the merits but only the procedural issue of maintainability of the counterclaim. (Paras 4-5)
Issue of Consideration
Whether a counterclaim filed under Order VIII Rule 6-A of the Code of Civil Procedure, 1908 after the commencement of trial and after the plaintiff's evidence-in-chief and partial cross-examination is maintainable.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 12.07.2021 allowing the counterclaim subject to payment of costs of Rs.8000/- to the plaintiff.
Law Points
- Counterclaim can be filed after written statement but before conclusion of evidence
- Order VIII Rule 6-A CPC
- Section 16 Specific Relief Act
- 1963
- tenant's right to carry out repairs
- mandatory injunction
