Indira Bhai v. Madhusoodanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 27TH DAY OF OCTOBER 2014/5TH KARTHIKA, 1936 ## **OP(C).No. 496 of 2011 (O)** AGAINST THE ORDER IN I.A.NO.7222/2010 IN OS.NO.242/2009 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT - II, NEYYATTINKARA DATED 20-10-2010. ## PETITIONER: INDIRA BHAI, D/O.BHAVANI ATHIMOOTTIL, ARUMANOOR DESOM, THIRUPURAM VILLAGE THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. ## RESPONDENT: MADHUSOODANAN, S/O.DIVAKARAN, ATHIMOOTTU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE THIRUVANANTHAPURAM - 695 121. BY ADV. SRI.G.S.REGHUNATH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **O.P.(C) NO.496 OF 2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - EXT.P1 TRUE COPY OF THE WRITTEN STATEMENT DATED 23.9.2009. - EXT.P2 TRUE COPY OF THE APPLICATION FOR AMENDMENT I.A.NO.6398 OF 2010 IN O.S.NO.242/2009. - EXT.P3 TRUE COPY OF THE OBJECTION DATED 30.8.2010 TO EXT.P2. - EXT.P4 TRUE COPY OF THE AMENDED PLAINT IN O.S.NO.242/2009. - EXT.P5 TRUE COPY OF THE APPLICATION I.A.NO.7222 OF 2010 IN O.S.NO.242/2010. - EXT.P6 TRUE COPY OF THE OBJECTION DATED 11.10.2010 FILED BY THE PETITIONER TO EXT.P5 APPLICATION. - EXT.P7 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE RESPONDENT ALONG WITH THE COUNTER CLAIM. - EXT.P8 TRUE COPY OF THE ORDER DATED 20.10.2010 IN I.A.NO.7222 OF 2010 IN O.S.NO.242 OF 2009 OF THE ADDITIONAL MUNSIFF'S COURT - II, NEYYATTINKARA. ## **RESPONDENTS' EXHIBITS** : EXT.R1(a) TRUE COPY OF THE REPLICATION DATED 8.11.2010 FILED BY PETITIONER HEREIN. //TRUE COPY// AHZ/ **“C.R.”** ## **K.T.SANKARAN, J.** **-----------------------------------------------------O.P.(C) NO. 496 OF 2011 (O) -----------------------------------------------------Dated this the 27[th] day of October, 2014** ## **JUDGMENT** The question involved in this Original Petition is whether the defendant in a suit can raise a counter claim with respect to a cause of action which arose consequent to the amendment of the plaint, after filing written statement by the defendant. 2. The petitioner filed the suit for fixation of boundary against the respondent and eight others. Defendants 1, 2 and 4 to 9 filed the written statement dated 23.9.2009. According to the defendants, the suit is barred by res judicata in view of the decision in a previous litigation between the parties. An issue was raised on the question of res judicata. The defendants wanted that issue to be tried as a preliminary issue. The trial court held that to decide that issue evidence may be required and, therefore, it was not proper to decide the question of bar of res judicata as a preliminary issue. ## **O.P.(C) NO. 496 OF 2011 (O)** :: 2 :: 3. The petitioner/plaintiff filed I.A.No.6398 of 2010 for amendment of the plaint to correct the extent of the plaint schedule property and to add a prayer for consequential injunction. The respondent/first defendant objected to the same. But the court below allowed the application for amendment of the plaint by the order dated 23.9.2010. 4. Thereafter, the first defendant filed I.A.No.7222 of 2010 for leave to accept the counter claim filed along with the additional written statement. As per the counter claim sought to be raised, the defendant prayed for the issue of a permanent prohibitory injunction restraining the plaintiff from destroying the existing boundaries. In the affidavit seeking leave to file the counter claim, it was alleged by the first defendant that after I.A.No.6398 of 2010 (application for amendment of the plaint) was allowed, on the next day, an attempt was made by the plaintiff to destroy the existing boundaries separating the plaint schedule property and the defendants' property. 5. The court below allowed I.A.No.7222 of 2010 (application ## **O.P.(C) NO. 496 OF 2011 (O)** :: 3 :: for leave to accept the counter claim), which is under challenge in this Original Petition filed by the plaintiff. 6. Sri.Shinod, the learned counsel appearing for the petitioner, submitted the following: There is no provision in the Code of Civil Procedure for filing an additional written statement and it is only a practice that is being followed. The cause of action for filing a counter claim by the defendant against the plaintiff must be one which accrues 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, as provided under Rule 6A of Order VIII of the Code of Civil Procedure. In the present case, the written statement was filed and the cause of action admittedly arose thereafter and therefore, it could not be the subject matter for a counter claim. 7. Sri.G.S.Raghunath, the learned counsel appearing for the respondent/first defendant, submitted that the counter claim was instituted on account of the amendment of the plaint and a cause of action which accrued in favour of the defendant immediately after ## **O.P.(C) NO. 496 OF 2011 (O)** :: 4 :: allowing the application for amendment. The learned counsel submitted that once the plaint is amended, the defendant gets a right to amend his written statement or to file an additional written statement. At that time, he also gets a right to file a counter claim in respect of a cause of action which accrued before the date of filing of the additional written statement. 8. Rule 6A of Order VIII of the Code of Civil Procedure is extracted below for the sake of convenience: “ **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 ## **O.P.(C) NO. 496 OF 2011 (O)** :: 5 :: final judgement 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.” 9. The defendant in a suit may file a counter claim as provided under Rule 6A of Order VIII of the Code of Civil Procedure. At the same time, he is not bound to file a counter claim in respect of a cause of action which has accrued to him, as provided under Rule 6A. The defendant may file a separate suit in respect of that cause of action mentioned in Rule 6A. It is optional for the defendant either to file a counter claim or to file a separate suit. Rule 6A was inserted by the Code of Civil Procedure Amendment Act 104 of 1976. The object of the scheme of Rule 6A to 6G is to avoid multiplicity of suits and to enable the court to completely and effectually settle the disputes between the parties in the same proceeding. However, Rule 6A stipulates that in respect of the counter claim, the cause of action must be one accruing to the defendant against the plaintiff ## **O.P.(C) NO. 496 OF 2011 (O)** :: 6 :: before the defendant has delivered his defence or before the time limited for delivering defence has expired. In the case of set off, even if the claim as put forward by the defendant is barred on the date of filing the written statement, it could be filed if the same is not barred as on the date of filing the suit, going by Section 3(2)(b) of the Limitation Act. Section 3(2)(b) of the Limitation Act provides that for the purpose of that Act any claim by way of set off or counter claim shall be treated as a separate suit and shall be deemed to have been instituted (i) in the case of set off on the same date as the suit in which the set off is pleaded; and (ii) in the case of a counter claim on the date on which the counter claim is made in Court. 10. Rule 17 of Order VI provides for amendment of pleadings. Pleading shall mean plaint and written statement (see Order VI Rule 1). If the plaint is amended, the defendant gets a right to amend his written statement to answer the contentions put forward in the amended plaint. The defendant may file an additional written statement in respect of the matters covered by the amendment of the plaint. As provided in Rule 9 of Order VIII, no pleading subsequent to the written statement of a defendant other than by way of defence ## **O.P.(C) NO. 496 OF 2011 (O)** :: 7 :: to set off or counter claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit. But the Court may, at any time, require a written statement or additional written statement from any of the parties. As a matter of practice, Courts allow additional written statement to be filed after the plaint is amended. Such practice is recognised by the Supreme Court in **Gurdial Singh and others** v. **Raj Kumar Aneja and others (AIR 2002 SC 1003),** wherein it was held: “18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6, Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh and others v. Ram Baboo and others, AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite ## **O.P.(C) NO. 496 OF 2011 (O)** :: 8 :: party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment. 19. Some of the High Courts permit, as matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.” ## 11. In **Ramesh Chand Ardawatiya** v. **Anil Panjwani (AIR** **2003 SC 2508)** , the Supreme Court considered the scope and ambit of Rule 6A of Order VIII and held thus: “28. Looking to the scheme of O.VIII as amended by Act No.104 of 1976, we are of the opinion, that there ## **O.P.(C) NO. 496 OF 2011 (O)** :: 9 :: are three modes of pleading or setting up a counterclaim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter-claim which in the light of R.1 read with R.6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter-claim though referable to R.6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under O.VI, R.17 of the C. P. C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.VIII, R.9 of the C. P. C. if sought to be placed on record by way of subsequent pleading. .....” 12. Thus it is fairly clear that the first defendant gets a right to amend his written statement consequent to the amendment of the plaint. The first defendant may also seek leave of the Court to make subsequent pleadings. ## **O.P.(C) NO. 496 OF 2011 (O)** :: 10 :: 13. The restriction placed under Rule 6A of Order VIII in the matter of counter claim is that the counter claim must relate to any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The time limit is with respect to the cause of action and not with respect to the filing of the written statement. A counter claim can be raised even after filing the written statement. But it must relate to a cause of action which accrued before the date of filing of the written statement. In other words, the last date with reference to the cause of action for filing the counter claim should be either (a) before the defendant has delivered his defence; or (b) before the time limited for delivering his defence has expired. If the cause of action arose before the date as mentioned above, a counter claim can be filed even after filing the original written statement. In the present case, the situation is different. Here the cause of action arose after the date of filing of the original written statement but before the date of filing of the additional written statement. The additional written statement was necessitated ## **O.P.(C) NO. 496 OF 2011 (O)** :: 11 :: because of the amendment of the plaint. The application for amendment of plaint was filed after the defendant filed the written statement. The defendant was entitled to amend his written statement consequent on the amendment of the plaint or with the leave of the Court, he could file an additional written statement. The defendant applied for leave and the Court granted leave. The cause of action for the counter claim arose before the date of filing of the application for leave to file additional written statement. I do not think that the counter claim set up by the defendant is beyond the time limit prescribed by Rule 6A of Order VIII of the Code of Civil Procedure. The expression “written statement” occurring in Rule 6A could be read to include amendment of written statement or additional written statement with the leave of the Court which the defendant could make on the basis of the amendment of plaint. 14. The decision of the Supreme Court in **Mahendra Kumar and another** v. **State of Madhya Pradesh and others (AIR 1987 SC 1395)** would support the view taken above. The Supreme Court in **AIR 1987 SC 1395 (supra)** held thus: ## **O.P.(C) NO. 496 OF 2011 (O)** :: 12 :: “15. The next point that remains to be considered is whether R. 6A(1) of O. VIII, Civil P.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R. 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 R. 6A(1) is that a counter-claim 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 counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of R.6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from R.6A(1), Civil P.C. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable. .....” 15. The learned counsel for the respondent/first defendant pointed out that subsequent to the filing of the additional written statement containing the counter claim, the plaintiff filed a replication ## **O.P.(C) NO. 496 OF 2011 (O)** :: 13 :: in answer to the counter claim. Therefore, it cannot be said that any prejudice was caused to the plaintiff by the order impugned in the Original Petition. On the principles mentioned above, I am of the view that the court below was right in allowing the application granting leave to file additional written statement setting up the counter claim. The Original Petition is, accordingly, dismissed. No order as to costs. **K.T.SANKARAN Judge** ahz/