Case Note & Summary
The applicant, M/s Parakh Sales Corporation, filed a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908, challenging an order dated 5.7.2011 passed by the Joint Civil Judge, Senior Division, Aurangabad. The impugned order allowed the counter claim of the respondent-defendant, Manoj Kothari, to be taken on record and directed framing of additional issues. The applicant (original plaintiff) had filed a suit for recovery of Rs.16,24,222/- against the respondent, claiming that the respondent was orally appointed as manager of the plaintiff's firm at Aurangabad on a consolidated salary of Rs.7,000/- per month, and that the respondent left service on 1.9.2006. The plaintiff alleged that the respondent had received excess salary payments. The respondent filed a written statement claiming that under an oral agreement, he was entitled to sale incentives at 2% on sale proceeds, and he sought settlement of accounts. The respondent also filed a counter claim for rendition of accounts. Earlier, the trial court had rejected the counter claim, but the respondent filed First Appeal No.1627/2010, which was allowed by the High Court on the ground that the trial court had dismissed the counter claim on merits without giving an opportunity to adduce evidence and had directed decree at the stage of preliminary issue. After remand, the trial court allowed the counter claim to be taken on record. The applicant argued that the counter claim was barred by limitation and could not be filed after the written statement. The High Court held that under Order 8 Rule 6A of the CPC, a counter claim can be filed even after filing the written statement, provided it arises out of the same transaction and is not barred by limitation. The court noted that the counter claim for rendition of accounts arose from the same oral agreement and was within limitation as the suit was pending. The court found no illegality or material irregularity in the trial court's order and dismissed the revision application.
Headnote
A) Civil Procedure Code - Counter Claim - Order 8 Rule 6A - Permissibility - Defendant filed counter claim for rendition of accounts after filing written statement in a suit for recovery of money - Held that counter claim can be entertained even after filing written statement if it arises out of the same transaction and is not barred by limitation - Trial court's order allowing counter claim upheld (Paras 1-5).
Issue of Consideration
Whether the trial court was justified in allowing the counter claim of the defendant to be taken on record after the written statement was filed, and whether the counter claim was barred by limitation.
Final Decision
The High Court dismissed the Civil Revision Application, upholding the trial court's order dated 5.7.2011 which allowed the counter claim of the respondent-defendant to be taken on record and directed framing of additional issues.
Law Points
- Counter claim can be filed even after filing written statement if it arises from same cause of action
- Order 8 Rule 6A CPC
- Limitation for counter claim
- Rendition of accounts
