Case Note & Summary
The appellant (original plaintiff) filed a suit for perpetual injunction in respect of a house property. The respondent (original defendant) filed a written statement denying the claim. Subsequently, the respondent sought to file a counter-claim for possession of the suit property. The trial court allowed the counter-claim, and the appellate court upheld that order. The appellant challenged this in second appeal. The High Court examined the interpretation of Order 8 Rule 6A CPC, which permits a counter-claim to be filed after the written statement if it arises from the same cause of action. The court found that the counter-claim was based on the same cause of action as the suit and that no prejudice was caused to the plaintiff. However, the court noted that the trial court had not properly considered the maintainability of the counter-claim. The High Court allowed the appeal, set aside the orders of the lower courts, and remanded the matter to the trial court for fresh consideration of the counter-claim in accordance with law.
Headnote
A) Civil Procedure - Counter-claim - Order 8 Rule 6A CPC - Maintainability - The appellant filed a suit for perpetual injunction; the respondent filed a written statement but later sought to file a counter-claim for possession. The trial court allowed the counter-claim, which was upheld by the appellate court. The High Court held that a counter-claim can be filed even after the written statement, provided it arises from the same cause of action and does not prejudice the plaintiff. The court allowed the appeal and set aside the orders allowing the counter-claim, remanding the matter for fresh consideration. (Paras 2-10)
Issue of Consideration
Interpretation, scope and ambit of Order 8 Rule 6A of the Code of Civil Procedure, 1908 in respect of counter-claim.
Final Decision
The High Court allowed the appeal, set aside the judgment and order dated 16/8/1993 of the District Judge, Sangli and the order dated 29/2/1988 of the Civil Judge, Junior Division, Vita, and remanded the matter to the trial court for fresh consideration of the counter-claim in accordance with law.
Law Points
- Order 8 Rule 6A CPC
- Counter-claim
- Same cause of action
- Maintainability of counter-claim after written statement
Case Details
2020 LawText (BOM) (01) 104
Second Appeal No. 249 of 1995
Mr. Umesh Mankapure for appellants, Mr. Rajesh B. Parab i/b Mr. D.S. Sawant for respondent
Shamrao Sitaram Kadam (since deceased through legal heirs: Krishna Shamrao Kadam, Vishnu Shamrao Kadam, Nirabai Vacant Phalke)
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Nature of Litigation
Second appeal against judgment and order in a civil suit for perpetual injunction and counter-claim for possession.
Remedy Sought
Appellant sought to set aside the orders allowing the respondent's counter-claim for possession.
Filing Reason
The trial court allowed the respondent to file a counter-claim for possession after the written statement was filed, which was upheld by the appellate court.
Previous Decisions
Trial court (Civil Judge, Junior Division, Vita) allowed the counter-claim on 29/2/1988; District Judge, Sangli upheld that order on 16/8/1993.
Issues
Whether a counter-claim under Order 8 Rule 6A CPC can be filed after the written statement has been filed?
What is the interpretation, scope and ambit of Order 8 Rule 6A CPC in respect of counter-claim?
Submissions/Arguments
Appellant argued that the counter-claim was not maintainable as it was filed after the written statement.
Respondent argued that the counter-claim arose from the same cause of action and was permissible under Order 8 Rule 6A CPC.
Ratio Decidendi
A counter-claim under Order 8 Rule 6A CPC can be filed even after the written statement, provided it arises from the same cause of action and does not prejudice the plaintiff. The court must consider the maintainability of the counter-claim on its merits.
Judgment Excerpts
Interpretation, scope and ambit of Order 8 Rule 6A of C.P.C in respect of Counter-claim.
The appeal was admitted on the following substantial questions of law.
Procedural History
The appellant filed RCS No. 235 of 1983 for perpetual injunction. The respondent filed a written statement and later sought to file a counter-claim for possession. The trial court allowed the counter-claim on 29/2/1988. The appellant appealed to the District Judge, Sangli, who upheld the order on 16/8/1993. The appellant then filed the present second appeal in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 8 Rule 6A
