Case Note & Summary
The petitioners, original plaintiffs in a civil suit for declaration and permanent injunction filed on 17 April 2007, challenged an order of the trial court allowing the respondents (defendants) to amend their counterclaim to declare a sale deed dated 19 October 2007 as null and void. The suit property was disputed, and the respondents had filed their written statement in July 2007, claiming adverse possession and a one-third share. The original counterclaim challenged a sale deed dated 19 April 2007, and an amendment was allowed on 15 December 2010. Subsequently, on 29 January 2014, the respondents applied to further amend the counterclaim to challenge the 19 October 2007 sale deed, which the trial court allowed. The petitioners contended that this amendment introduced a new cause of action that arose after the written statement was filed, in contravention of Order VIII Rule 6A of the Code of Civil Procedure, 1908. The legal issue was whether a counterclaim can be raised by way of amendment on a cause of action accruing after the defendant has delivered his defence. The petitioners argued that the provision clearly bars a counterclaim based on a cause of action arising after the filing of the written statement or after the expiry of the time for filing it. The High Court, relying on precedents including Mahendra Kumar v. State of Madhya Pradesh and Ganu Kisna Buradkar v. Manik Misna Buradkar, held that Order VIII Rule 6A(1) permits a counterclaim only if the cause of action accrued to the defendant before delivering his defence or before the time limited for delivering his defence expired. The court reasoned that the 2014 amendment sought to challenge a sale deed dated 19 October 2007, which post-dated the written statement of July 2007; thus, the cause of action was not available at the time of filing the defence. It distinguished the Supreme Court’s observation in Mahendra Kumar that the rule does not bar a counterclaim filed after the written statement, as that case involved a cause of action that existed before the defence was filed. The court also noted the purpose of the counterclaim provision is to avoid multiplicity of proceedings, but that cannot override the clear statutory condition. Consequently, the High Court set aside the trial court’s order allowing the amendment, holding that it was without jurisdiction and contrary to law.
Headnote
A) Civil Procedure - Counterclaim - Maintainability - Code of Civil Procedure, 1908, Order VIII Rule 6A - The defendant sought amendment to the counterclaim to challenge a sale deed dated 19/10/2007, but the cause of action arose after the written statement was filed in July 2007 - The court held that Rule 6A permits a counterclaim only for a cause of action accruing to the defendant before delivering his defence or before the time for delivering his defence expires; a cause of action arising subsequently cannot be introduced by amendment - Held that the amendment was not maintainable and the trial court's order was set aside (Paras 4-11).
B) Civil Procedure - Amendment of Counterclaim - Discretion of Court - Code of Civil Procedure, 1908, Order VI Rule 17, Order VIII Rule 9 - An amendment seeking to introduce a new cause of action that arose after the written statement is not a matter of right and falls outside the scope of Order VIII Rule 6A - The trial court erroneously exercised its jurisdiction by allowing the amendment, and the High Court quashed the order, reiterating that the discretion under Order VI Rule 17 or Order VIII Rule 9 cannot override the substantive bar in Rule 6A - Held that allowing the amendment would defeat the purpose of avoiding multiplicity and finality of pleadings (Paras 5-11).
Issue of Consideration
Whether a counterclaim can be allowed by amendment at a later stage on a cause of action that arose after the filing of the written statement, contrary to Order VIII Rule 6A CPC?
Final Decision
The High Court allowed the writ petition, setting aside the trial court's order dated 29 January 2014 allowing the amendment to the counterclaim. The court held that Order VIII Rule 6A CPC does not permit a counterclaim based on a cause of action accruing after the written statement was filed, and the amendment was not maintainable.
Law Points
- counterclaim
- amendment
- cause of action
- Order VIII Rule 6A CPC
- written statement
- timing of counterclaim
- retrospective cause of action
- multiplicity of proceedings
- abuse of process
Case Details
2017 LawText (BOM) (09) 139
WRIT PETITION NO.782 OF 2014
Mrs. Maria Thelma Elvira Menezes e D'Souza, Mrs. Sharmila De Souza, Mr. Edward Joseph Antoony Antao, Ms. Safira D'Souza, Mr. Noshire D. Moddy
Shri Michael Lopes, Smt. Milina Gracia Santimano D'Souza Lopes, Shri Maria Road Lopes Simoes, Shri Domonic Simoes, Miss Vita Serafina Lopes, Shri Jose Ivono Rumao Lopes, Smt. Olivia Filomena Cunha Souza Lopes
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Nature of Litigation
Civil suit for declaration and permanent injunction filed by petitioners (original plaintiffs) against respondents (defendants) over immovable property.
Remedy Sought
Petitioners sought quashing of trial court's order dated 29 January 2014 allowing an application to amend the counterclaim to challenge sale deed dated 19 October 2007.
Filing Reason
The trial court allowed an amendment to the counterclaim that introduced a new cause of action which arose after the written statement was filed, in violation of Order VIII Rule 6A CPC.
Previous Decisions
The trial court allowed the application dated 29 January 2014 for amendment of the counterclaim.
Issues
Whether a counterclaim can be raised by way of amendment on a cause of action that accrued after the filing of the written statement, contrary to Order VIII Rule 6A CPC?
Submissions/Arguments
Petitioners argued that the counterclaim amendment was based on a cause of action (challenging sale deed of 19 October 2007) that arose after the written statement was filed in July 2007, and was therefore barred under Order VIII Rule 6A. Relied on Ramesh Chand Ardawatiya v. Anil Panjwani, Ganu Kisna Buradkar v. Manik Misna Buradkar, and Mahendra Kumar v. State of Madhya Pradesh to contend that the provision allows counterclaim only for causes of action accruing before delivery of defence.
Ratio Decidendi
Order VIII Rule 6A of the Code of Civil Procedure, 1908, permits a defendant to raise a counterclaim only if the cause of action accrued to him either before or after the filing of the suit but before he has delivered his defence or before the time limited for delivering his defence has expired. A cause of action that arises subsequent to the filing of the written statement cannot be introduced by way of an amendment to the counterclaim, as it falls outside the statutory scheme. The provision aims to avoid multiplicity of proceedings, but it must be interpreted strictly, and the court cannot exercise its discretion to allow an amendment that circumvents this temporal bar.
Judgment Excerpts
whether a counterclaim can be filed at a later date in respect of the cause of action which has arisen before the filing of the written statement in defence.
a bare reading of Section 6A of C.P.C. would take within its sweep a counterclaim in addition to the written statement which is based on a cause of action occurring to the defendants against the plaintiff either before or after filling of the suit but before the defendant has delivered his defence. In other words, no counterclaim can be raise by the defendants on a cause of action which has arisen subsequent to the filing of the written statement in defence or before the time limited for delivering the defence has expired.
Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counterclaim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not.
Procedural History
Suit for declaration and permanent injunction was filed on 17 April 2007. Respondents filed written statement in July 2007 claiming adverse possession and one-third share. An amendment to the counterclaim was made on 15 December 2010 challenging a sale deed dated 19 April 2007. Subsequently, on 29 January 2014, respondents filed an application to further amend the counterclaim to declare a sale deed dated 19 October 2007 as null and void, which the trial court allowed. Petitioners challenged that order by filing this writ petition. The High Court admitted the petition and, after hearing, pronounced judgment on 21 September 2017.
Acts & Sections
- Code of Civil Procedure, 1908: Order VIII Rule 6A, Order VIII Rule 6, Order VIII Rule 1, Order VIII Rule 9, Order VI Rule 17, Order IX Rule 7, Order XVIII Rule 17, Order I Rule 10, Order XXXIX Rules 1 and 2
- Indian Treasure Trove Act, 1878: Section 14
