Case Note & Summary
The petitioners, Pradeep Kashinathrao Kalyankar and Sow. Pramila Pradeep Kalyankar, filed a Regular Civil Suit (RCS No. 136 of 2013) seeking a declaration of ownership and perpetual injunction in respect of certain property. The suit was based on a written partition deed executed on 19.3.2013 and verified before a Notary on 25.3.2013. The respondents, Pramod Kashinathrao Kalyankar and Sumitra Pramod Kalyankar, filed their written statement on 13.8.2013. Subsequently, on 24.2.2014, the respondents filed a counter claim along with an application (Exhibit 34) seeking permission to register the counter claim. The trial court allowed the application by order dated 27.8.2015, permitting the respondents to file the counter claim and directing the petitioners to file a written statement. Aggrieved, the petitioners filed the present writ petition. The core legal issue was whether the counter claim was filed in accordance with Order VIII Rule 6A of the Code of Civil Procedure, 1908 (CPC). The petitioners argued that the counter claim was filed after the written statement and therefore could not be entertained. The respondents contended that the counter claim was filed within the time limited for delivering defence, as the time for filing written statement had not expired. The High Court examined the language of Order VIII Rule 6A(1), which allows a defendant to set up a counter claim in respect of a cause of action accruing before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The Court noted that the written statement was filed on 13.8.2013, but the time for filing the written statement under Order VIII Rule 1 CPC is 30 days from the date of service of summons, extendable up to 90 days. Since the suit was filed on 25.5.2013, the time for filing the written statement would have expired only after 90 days, i.e., around 23.8.2013. However, the counter claim was filed on 24.2.2014, which was beyond the 90-day period. The Court observed that the trial court had not recorded any finding that the time for delivering defence had expired. The Court held that the language of Order VIII Rule 6A(1) is clear and permits a counter claim to be set up before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Since the time for filing written statement had not expired when the counter claim was filed, the trial court's order was justified. The writ petition was dismissed, and the trial court was directed to proceed with the suit and counter claim expeditiously.
Headnote
A) Civil Procedure - Counter Claim - Order VIII Rule 6A CPC - Maintainability - The issue was whether a counter claim filed after the written statement but before the expiry of the time limited for delivering defence is permissible - The Court held that the language of Order VIII Rule 6A(1) is clear and permits a counter claim to be set up before the defendant has delivered his defence or before the time limited for delivering his defence has expired - Since the time for filing written statement had not expired when the counter claim was filed, the trial court's order allowing the counter claim was upheld (Paras 6-8).
Issue of Consideration
Whether a counter claim filed after the written statement but before the expiry of the time limited for delivering defence is maintainable under Order VIII Rule 6A of the Code of Civil Procedure, 1908.
Final Decision
The writ petition is dismissed. The order dated 27.8.2015 passed by the trial court is upheld. The trial court is directed to proceed with the suit and counter claim expeditiously.
Law Points
- Order VIII Rule 6A CPC
- counter claim
- written statement
- time for delivering defence
- cause of action accruing before or after filing of suit
