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      REPORTABLE

IN THE SUPREME COURT OF INDIA     

 CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.2308-2309 OF 2016

(Arising out of SLP(C)Nos.8536-8537 of 2008)

VIJAY PRAKASH JARATH                              .......APPELLANT

VERSUS

TEJ PRAKASH JARATH                                .......RESPONDENT WITH

CIVIL APPEAL No.2310 OF 2016 (Arising out of SLP(C)No.32118 of 2009)

                                                  J U D G M E N T

JAGDISH SINGH KHEHAR, J.

Civil  Appeal  Nos.2308-2309  of  2016  (Arising  out  of SLP(C)Nos.8536-8537 of 2008)

1. The respondent before this Court – Tej Prakash Jarath filed Suit No.608 of 1992 on 09.11.1992.  In the aforesaid suit, defendants Nos.3 and 4 – Om Prakash Jarath (the father of the plaintiff in the suit) and Vijay Prakash Jarath (the elder brother of  the  plaintiff)  respectively,  filed  written  statements  on 11.11.1992.  Thereupon,  issues  came  to  be  framed  on  18.10.1993. After the framing of the issues, the petitioners before this Court

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(i.e.  defendant  Nos.3  and  4  in  the  original  suit),  filed  a counter-claim on 17.06.1996 i.e. almost two and a half years after the framing of the issues. 2. The  trial  court,  vide  its  order  dated  28.10.1996, accepted  the  aforesaid  counter-claim.   The  above  order  dated 28.10.1996,  came  to  be  assailed  by  the  respondent-plaintiff-Tej Prakash Jarath through Civil Miscellaneous Writ Petition No.1266 of 2001, before the High Court of Uttarakhand at Nainital (hereinafter referred to as `the High Court’). The High Court relying upon the judgment of this Court in Rohit Singh & ors. vs. State of Bihar (Now State of Jharkhand) & Ors., (2006) 12 SCC 734, concluded, that the counter-claim filed by the petitioner-defendant Nos.3 and 4 before the trial court, was not legally acceptable.  The order passed  by  the  High  Court  dated  02.01.2008,  recording  the  above conclusion, has been assailed through the instant special leave petitions. 3. Leave granted.    4. Before adverting to the merits of the controversy, we would first endeavour to deal with the issues as to whether the High Court correctly applied the judgment rendered by this Court in Rohit Singh’ case (supra), to the controversy in hand.  In order to appreciate the conclusions drawn by this Court in Rohit Singh’s case (supra), the following observations (relating to the facts and conclusions) recorded therein need to be taken into consideration:

“17. We  shall  first  consider  whether  there  was  a counterclaim in the suit in terms of Order 8 Rule 6A of the Code in this case. The suit was filed against the Divisional Forest Officer and the State of Bihar as Defendants  1  and  2  on  26.2.1996  by  Respondent  No.6

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herein.  After the written statement was filed by the defendants, issues were framed and the suit went to trial.  On 3.6.1996 and 6.6.1996 the evidence on the side of the plaintiff was concluded.  On 14.6.1996 the  evidence on the side of the defendants was completed. On 24.6.1996 arguments  were  concluded.  Judgment was  reserved.  25.6.1996  was  fixed  as  the  date  for pronouncing  the  judgment.  The  judgment  was  not pronounced  and  it  appears  that  the  Judge  was subsequently  transferred.   Therefore,  on  20.8.1996 arguments were again heard by the successor Judge and judgment was reserved.  27.8.1996 was fixed as the date for judgment.  Apparently, it was not pronounced.  It is  thereafter  that  Defendants  3  to  17  filed  an application on 11.9.1996 for intervention in the suit. We have already referred to the allegations in that application for impleading filed. We only notice again that they claimed to be in possession of the property and that their presence before the court was necessary in  order  to  enable  the  court  to  effectually  and completely adjudicate upon and settle all the questions involved in the suit. On 19.9.1996 the application for intervention  was  allowed.  On  30.9.1996  a  written statement was filed by Defendants 3 to 12. We have already summarised the pleas raised therein.    18. After this, the witnesses of the plaintiff were recalled and permitted to be cross-examined by these Defendants. That was on 5.10.1996. Again the witnesses for defendants 1 and 2, were recalled and they were permitted  to  be  cross-examined  on  behalf  of  these defendants. The evidence on the side of Defendants 3 to 17  was  let  in.   It  commenced  on  24.2.1997  and  was closed on 30.1.1997.  Thereafter, arguments were heard again and the arguments on the side of the defendants including that of Defendants 3 to 17 were concluded on 4.3.1997.  The suit was adjourned for arguments on the side  of  the  plaintiff. On  5.3.1997,  the  suit  was dismissed for default of the plaintiff. It was then restored on 29.5.1998. It was thereafter on 5.6.1998, that  Defendants  3  to  17  filed  an  application  for amending  the  written  statement.   The  amendment  was allowed on 20.7.1998. There was no order treating the amended  written  statement  as  a  counter-claim  or directing either the plaintiff or Defendants 1 and 2 to file  a  written  statement  or  an  answer  thereto. Defendants  3  to  17  had  questioned  the  pecuniary jurisdiction  of  the  trial  court  in  their  written statement.  That plea was permitted to be withdrawn on 4.2.1999.  It  is  clear  that  after  the  evidence  was closed,  there  was  no  occasion  for  impleading  the interveners.  Even assuming that they were properly impleaded,  after  they  had  filed  their  written

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statement,  the  suit  had  gone  for  further  trial  and further evidence including that of the interveners had been  taken,  the  evidence  again  closed  and  even arguments  on  the  side  of  the  interveners  had  been concluded.  The suit itself was dismissed for default only because on behalf of the plaintiff there was a failure  to  address  arguments.   But  the  suit  was subsequently restored.  At that stage no counter-claim could  be  entertained  at  the  instance  of  the interveners. A counter-claim, no doubt, could be filed  even after the written statement is filed, but that does not mean that a counter-claim can be raised after issues  are  framed  and  the  evidence  is  closed. Therefore,  the  entertaining  of  the  so-called counter-claim of Defendants 3 to 17 by the trial court, after the framing of issues  for  trial, was clearly illegal and without jurisdiction.  On that short ground the so called counter-claim, filed by Defendants 3 to 17 has to be held to be not maintainable.    19. As can be seen, what Defendants 3 to 17 did, was to merely amend their written statement by adding a sentence  to  para  16  of  the  written  statement  they originally filed. In para 16 it was only pleaded that those  defendants  were  claiming  to  be  in  peaceful possession of the suit lands ever since the time of their predecessors.  They wanted to add that they had claimed  acquisition  of  title  based  on  long  and uninterrupted possession and they crave leave to get their  title  declared  in  the  suit  for  which  a declaratory court fee is paid. It may be noted that not even  a  prayer  was  sought  to  be  added  seeking  a declaration of their title as is the normal practice. It  is,  therefore,  clear  that  on  going  through  the original  written  statement  and  the  amendment introduced, that there was no counter-claim in terms of Order 8 Rule 6A of the Code in the case on hand, which justifies  a  trial  of that counter-claim even  assuming  that  such  a  counter-claim  was  maintainable even if no relief was claimed against the plaintiff in the  suit  but  it  was  directed  only  against  the co-defendants in the suit.  The counter-claim so called is liable to be rejected on that ground as well.”

      (emphasis is ours)

5. The  factual  position  in  the  relied  upon  judgment,  is  not similar  to  the  factual  position  of  the  case  in  hand.  In  the present case, after the issues had been framed, the plaintiff’s

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evidence had commenced to be recorded. Though the same had not yet been concluded.  In Rohit Singh’ case (supra), on the other hand, not  only  were  issues  framed,  and  the  evidence  of  the  rival parties, including the defendant recorded. Furthermore, on several occasions, arguments were heard for the ultimate disposal of the suit. And more than once, the judgment was also reserved, but then, on account of transfer of the Judge, and for other reasons, evident from the extract recorded hereinabove, judgment could not be pronounced.  It is in the aforesaid situation, that the counter claim  filed  by  the  defendants,  at  such  a  belated  stage,  was considered  to  be,  not  sustainable  in  law.  We  are,  therefore, satisfied in holding, that the judgment rendered in Rohit Singh’s case is clearly not applicable to the facts and circumstances of this case. 6. Furthermore,  learned  counsel  for  the  appellants  had contended,  on  the  basis  of  observations  recorded  in  para  18 (extracted  above)  in  Rohit  Singh’s  case  (supra),  that  counter claim would not be permissible after framing of the issues, and after the evidence is concluded. Even if the above parameter is applied to the facts of the present case, it is apparent, that the judgment rendered in Rohit Singh’s case (supra) would not lead to the findings recorded by the High Court in the impugned order, for the simple reason, that in Rohit Singh's case, evidence from both sides was concluded, and even arguments had been heard, whereas, in  the  present  case,  even  though  evidence  on  behalf  of  the respondent-plaintiff has commenced, it has not yet concluded.  The evidence on behalf of the defendants is yet to commence.  

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7. Despite the conclusions recorded by us hereinabove, it is relevant to record, that it was also the contention of the learned counsel for the respondent-plaintiff, that the decision rendered by  this  Court  in  Rohit  Singh’s  case,  has  been  reiterated  in Bollepanda P. Poonacha & Anr vs. K.M.Madapa, (2008) 13 SCC 179, and a perusal of the above judgment, would lead to the conclusion, that in the factual analysis, the conclusions drawn by the High Court were justified.  Our pointed attention was drawn to the conclusions recorded in paragraph 15 of the above judgment, which is extracted hereunder:

“15. A belated counter claim must be discouraged by this Court.  See  Ramesh  Chand  Ardawatiya  Vs.  Anil  Panjwani [(2003) 7 SCC 350]. We are, however, not unmindful of the decisions of this Court where a defendant has been allowed to amend his written statement so as to enable him to elaborate  his  defence  or  to  take  additional  pleas  in support of his case. The Court in such matters has a wide discretion.  It must, however, subserve the ultimate cause of justice.  It may be true that further litigation should be endeavoured to be avoided.  It may also be true that joinder  of  several  causes  of  action  in  a  suit  is permissible.  The  Court,  must,  however,  exercise  the discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of serious injustice or irreparable loss, but nevertheless should bear in mind that  a  provision  for  amendment  of  pleadings  are  not available as a matter of right under all circumstances. One cause of action cannot be allowed to be substituted by another. Ordinarily,  effect  of  an  admission  made  in earlier pleadings shall not be permitted to be taken away. See State of A.P Vs. M/s. Pioneer Builders, A.P. [(2006) 9 SCALE 520] and Steel Authority of India Ltd. Vs. Union of India [2006 (9) SCALE 597] and Himmat Singh Vs. I.C.I. India Ltd. [2008 (2) SCALE 152].”

    (emphasis is ours)

Having perused the conclusions drawn in paragraph 15, extracted

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above, we are satisfied, that the same are wholly inapplicable to the facts and circumstances of this case, and that, the decision of the High Court could not have been legitimately based on the conclusions recorded in paragraph 15, extracted above. 8. It is in these circumstances, that we advert to Order VIII  Rule  6A  of  the  Code  of  Civil  Procedure,  which  is  being reproduced below:

“6A.  Counter-claim by defendant  - (1)   A   defendant in a suit may, in addition to  his  right of pleading a set-off under rule 6, set up,  by  way of counter-claim against the claim of the plaintiff, any right or claim in  respect  of  a  cause  of  action  accruing  to  the defendant against the plaintiff either 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,  whether  such counter-claim is in the nature of a claim for damages or not:     Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement  in  answer  to  the  counter-claim  of  the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any doubt, that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a

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written statement. The instant determination of ours is supported by  the  conclusions  drawn  in  Bollepanda  P.  Poonacha  &  Anr  vs. K.M.Madapa (supra), wherein this Court observed as under:

“11.  The  provision  of  Order  8  Rule  6-A  must  be considered  having  regard  to  the  aforementioned provisions.  A  right  to  file  counterclaim  is  an additional right.  It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The  respondent  in  his  application  for  amendment  of written statement categorically raised the plea that the  appellants  had  tresspassed  on  the  lands  in question in the summer of 1998.  Cause of action for filing the counterclaim inter alia was said to have arisen at that time. It was so explicitly stated in the  said  application.  The  said  application,  in  our opinion,  was,  thus,  clearly  not  maintainable.  The decision  of  Ryaz  Ahmed  (supra)  is  based  on  the decision of this Court in Baldev Singh Vs. Manohar Singh [(2006) 6 SCC 498].”                                      (emphasis is ours)

It is not a matter of dispute in the present case, that cause of action for which the counter-claim was filed in the present case, arose before the respondent-plaintiff filed the suit (out of which these petitions/appeals have arisen). It is therefore apparent that the appellants before this Court were well within their right to file the counter-claim.  

9.     It  is  quite  apparent  from  the  factual  position  noticed hereinabove, that after the issues were framed on 18.10.1993, the counter claim was filed by the appellants before this Court (i.e. by defendant Nos.3 and 4 before the trial court) almost two and a half  years  after  the  framing  of  the  issues.  Having  given  our thoughtful consideration to the provisions relating to the filing of counter claim, we are satisfied, that there was no justification

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whatsoever  for  the  High  Court  to  have  declined,  the  appellant before  this  Court  from  filing  his  counter  claim  on  17.06.1996, specially because, it is not a matter of dispute, that the cause of action,  on  the  basis  of  which  the  counter  claim  was  filed  by defendant Nos.3 and 4, accrued before their written statement was filed  on  11.11.1992.  In  the  present  case,  the respondent-plaintiff's  evidence  was  still  being  recorded  by  the trial court, when the counter-claim was filed.  It has also not been  shown  to  us,  that  any  prejudice  would  be  caused  to  the respondent-plaintiff before the trial court, if the counter-claim was to be adjudicated upon, along with the main suit. We are of the view, that no serious injustice or irreparable loss (as expressed in paragraph 15 of Bollepanda P.Pooncha's case), would be suffered by the respondent-plaintiff in this case.  10.    For the reasons recorded hereinabove, we set aside the impugned  order  passed  by  the  High  Court  dated  02.01.2008,  and restore the order passed by the trial court dated 28.10.1996. 11.      The appeals are allowed in the above terms. 12.    Needless  to  mention,  that  it  shall  be  open  to  the respondent-plaintiff to raise all pleas open to him through the written statement which is filed by the respondent-plaintiff, to the counter claim. Civil  Appeal  No.2310  of  2016  (Arising  out  of  SLP(C)No.32118  of 2009) 13.    Leave granted. 14.   Learned  counsel  for  the  parties  are  agreed,  that  the controversy  raised  in  the  instant  appeal,  is  akin  to  the  one

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adjudicated upon by this Court in Vijay Prakash Jarath vs. Tej Prakash Jarath (Civil Appeal Nos.2308-2309 of 2016, arising out of SLP(C)Nos.8536-8537  of  2008,  decided  by  us  on  01.03.2016.  The instant  appeal  is  accordingly  allowed  in  terms  of  the  decision rendered by this Court in Vijay Prakash Jarath vs. Tej Prakash Jarath decided on 01.03.2016.

  ..........................J.                (JAGDISH SINGH KHEHAR)

                       ..........................J.

         (C.NAGAPPAN) NEW DELHI; MARCH 1, 2016.

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