VIJAY PRAKASH JARATHversusTEJ PRAKASHJARATH

                         [2016] 2 S.C.R. 91


                    VIJAY PRAKASH JARATH                                 A
                                  v.
                     TEJ PRAKASHJARATH
             (Civil Appeal Nos. 2308-2309of2016 etc.)
                          MARCHOl,2016                                   B

   (JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
       Code of Civil Procedure, 1908- 0. VIII r.6A - Counter claim
- When can be filed - Held: Cause of action in respect of which a
counter claim can be filed, should accrue before the defendant has       C
delivered his defence - In the present case, cause of action for
which counter-claim was filed. had arisen even before filing of the
suit i.e. well before the defendant delivered his defence - Thus, it
was well within the right of the defendants to file the counter-claim.
      Allowing the appeals,, the Court
                                                                         D
      HELD: 1. A perusal of Sub-clause (1) of Section 6A of Order
VIII CPC, 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 written statement. [Para 8] (97-H]
                                                                       E
      2. The cause of action for which the counter-claim was filed
in the present case, arose before the respondentcplaintiff filed
the suit. It is therefore apparent that the appellants were well
within their right to file the counter-claim. There was no
justification whatsoever for the High Court to have declined, the
appellant from filing his counter claim. It has also not been shown F
that any prejudice would be caused to the respondent-plaintiff
before tl1ce trial court, if the counter-claim was to be adjudicated
upon, along with the main suit. No serious injustice or irreparable .
loss would be suffered by the respondent-plaintiff in the present
case. [Paras 8 and 9] [98-E, H; 99-Aj                                 .G
      Bo/lepanda P. Poonacha & Anr vs. K.MMadapa 2008
      (4) SCR 1011 : (2008) 13 SCC 179 - relied on.
      Rohit Singh & Ors. vs. State ofBihar & Ors. 2006 (7)
      Suppl. SCR 278 : (2006) 12 SCC 734 - distinguished.
                                                                         H
                                  91
92              SUPREME COURT REPORTS                         [2016) 2 S.C.R.


A                             Case Law Reference
     2006 (7) Suppl. SCR 278           distinguished.            Para2
     2008 (4) SCR, 1011                relied on.                Para 7
          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2308-
B    2309of2016
            From the Judgment and Order dated 02.01.2008 and 13.02.2008
     of the Single Judge of the High Court ofUttarakhand at Nainital in Civil
     Misc. Writ Petition No. 1266 of2001 and Recall Application No. 94 of
     2008 in Writ Petition Misc. Single No. 1266 of2001
c                                      WITH
           C. A. NO. 2310 OF 2016
           K. Raghavacharyulu, Kailasll Pandey, A. Dey, Ranjeet Singh, K.
     V. Sreekumar, Advs. for the Appellant.
D        Dr. Meera Agarwal, Ramesh Chandra Mishra, Amarjeet Singh
     Dheman, Advs., for the Respondent.
           The Judgment of the Court was delivered by
          JAGDISH SINGH KHEHAR, J. Civil Appeal Nos.2308-
     2309 of 2016 (Arising out of SLPCC)Nos.8536-8537 of 2008)
E
            I.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
F    framed on 18.10.1993. After the framing of the issues, the petitioners
     before this Court (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. I 0.1996, accepted the
G    aforesaid counter-claim. The above order dated 28. I 0. 1996, came to
     be assailed by the respondent-plaintiff-Tej Prakash Jarath through Civil
     Miscellaneous Writ Petition No.1266 of2001, 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 Roh it Singh &
H    ors. vs. State of Bihar (Now State of Jharkhand) & Ors., (2006) 12
    VIJAY PRAKASH JARATH v. TEJ PRAKASH JARATH                                93
             [JAGDISH SINGH KHEHAR, J.]

SCC 734, concluded, that the counter-claim filed by the petitioner-           A
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.                                                        B
       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 Roh it 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            c
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.ofOrder 8 Rule 6A of the Code in this case. The
      suit was filed against the Divisional Forest Officer and the State      D
      ofBihar as Defendants I and 2 on 26.2.1996 by Respondent No.6
      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 th'e evidence on the side of the defendants was
      completed. On 24.6.1996 arguments were concluded. Judgment              E
      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          F
       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          G
      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.
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94       SUPREME COURT REPORTS                            [2016] 2 S.C.R.


A    18. After this, the witnesses of the plaintiff were recalled and
     permitted to be cross-<!_xamined by these Defendants. That was
     on 5.10.1996. Again the witnesses for defendants I 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
B
     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
c    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 I and 2 to file
     a written statement or an answer thereto. Defendants 3 to 17 had
D
     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 imp leading the interveners. Even assuming that they
     were properly impleaded, after they had filed their written
E    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
F
     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
G     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
 H   amend their written statement by adding a sentence to para 16 of
      VIJAY PRAKASH JARATH v. TEJ PRAKASH JARATH                                  95
               [JAGD!SH SINGH KHEHAR, J.]

       the written statement they originally filed. In para l 6 it was only       A
       pleaded that those defendants were claiming to be in peaceful
       possession of the suit lands ever since the time of their
       predecessor$. 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
                                                                                  B
       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
       nonnal 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-         C
       claim even assuming that such a counter-claim was maintainable
       even ifno'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

                                                                                  D
                                                          (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 evidence had commenced to be
 recorded. Though the same had not yet been concluded. In Rohit Singh'            E
 case (supra), on the other hand, not only were issues framed, and the
 evidence of the rival parties, including the defendant recorded.
 Furthennore, on several occasions, arguments were heard forthe 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             F
 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.                                                      G
         6. Furthermore, learned counsel for the appellants had contended,
· on the basis of observations recorded in para 18 (extracted above) in
  Roh it 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
                                                                                  H
96              SUPREME COURT REPORTS                        [2016) 2 S.C.R.



A    apparent, that the judgment rendered in Roh it 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 Roh it Singh's case, evidence from
     both sides was concluded, and even argun1'ents 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
B
     behalf of the defendants is yet to commence.
           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.
c    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:                ·
D          "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
E          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
F          manner. While considering that subservance of justice is the
           ultimate goal. the statutory limitation shall not be overstepped.
           Grant ofrelief will depend UJlOn the factual background involved
           in each case. The Court, while undoubtedly would take into
           consideration the questions of serious injustice or irreparable loss,
G          but nevertheless should bear in mind that a JlTOVision 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. Mis. Pioneer Builders, A.P. [(2006) 9 SCALE
H
    VIJAY PRAKASH JARATH v. TEJ PRAKASH JARATH                                 97
             [JAGDJSH SINGH KHEHAR, J.]

      520] and Steel Authority of India Ltd. Vs. Union of India (2006          A
      (9) SCALE 597] and Himmat Singh Vs. LC.I. India Ltd. (2008
      (2) sc;:ALE 152]."
                                                       (emphasis is ours)
Having perused the conclusions drawn in paragraph 15, extracted above,
we are satisfied, that the same are wholly inapplicable to the facts and       B
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 VlJI Rule
6A of the Code of Civil Procedure, which is being reproduced below:            C
      "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 D
      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:
                                                                             E
             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 finaljudgment in the·
      same suit, both on the original claim and on the counter-claim.   f
       (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."                                       G
A perusal of Sub-clause (I) of Section 6A of Order VlJI, 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 written statement.
                                                                                H
98              SUPREME COURT REPORTS                         [2016) 2 S.C.R.



A 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
B          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
c          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 ofRyazAhmed (supra)
           is based on the decision of this Court in Baldev Singh Vs. Manohar
D          Singh [(2006) 6 sec 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
E    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. l 0.1993, the counter claim was
  filed by the appellants before this Court (i.e. by defendant Nos.3 and 4
F 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 whatsoever forthe High Co9rt to have declined, the appellant
  before this Court from filing his counter claim on 17.06.1996, specially
G 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 l l .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-
H plaintiffbefore the trial court, ifthe counter-claim was to be adjudicated
     VIJAY PRAKASH JARATH v. TEJ PRAKASH JARATH                                   99
              [JAGDISH SINGH KHEHAR, J.]

upon, along with the main suit. We are of the view, that no serious injustice     A
or irreparable loss (as expressed in paragraph 15 of Bollepanda
P.Pooncha 's case), would be suffered by the respondent-plaintiff in this
case.
       I 0. For the reasons recorded hereinabove, we set aside the
impugned order passed by the High Court dated 02.01.2008, and restore             8
the order passed by the trial court dated 28.10.1996.
       11. The appeals are allowed in the above terms.
        12. Needless to mention, tliat it shall be open to the respondent-
plaintiffto raise all pleas open to him through the written statement which
is filed by the respondent-plaintiff, to the counter claim.                       c
    Civil Appeal No.2310                of 2016       (Arising      out of
SLPfC)No.32118 of 2009)
       13. Leave granted.
       14. Learned counsel for the parties are agreed, that the controversy       D
raised in the instant appeal, is akin to the one adjudicated upon by this
Court in Vijay Prakash Jarath vs. Tej Prakash Jarath (Civil Appeal
Nos.2308-2309of2016, 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
                                                                                  E
vs. Tej Prakash Jarath decided on 01.03.2016.
Kalpana K. Tripathy                                          Appeals allo\ved._