ORDER
V.S. Aggarwal, J.
1. The present revision petition has been filed by Kulshresth, hereinafter described as the petitioner, directed against the order passed by the learned Addl. Civil Judge. (Senior Division) Rewari, dated 4-12-1996. By virtue of the impugned order, learned trial Court dismissed the application filed by the petitioner to amend the written statement and file a counter claim seeking a decree for specific performance.
2. The relevant facts giving rise to the present revision petition are that the respondent-plaintiff filed a suit for permanent injunction to restrain the petitioner-defendant from raising any construction over the property in question. In the written statement filed, petitioner had contested the claim. It was asserted that respondents were not the owners of the property. During the pendency of the suit, petitioner submitted an application seeking amendment in the written statement. It was urged that Bishan Sarup had entered into an agreement to sell the property in dispute. Rupees 10,000/- were paid as part payment. Possession was delivered to the petitioner. Before the conclusion of contract, Bishan Sarup died on 25-12-1985. The petitioner gave legal notice to the legal representatives of Bishan Sarup and asked them to get the sale deed registered on payment of balance amount. Petitioner appeared before the Sub-Registrar but the respondents did not come. A counter-claim in this process was set up seeking specific performance of the agreement.
3. The learned trial Court after hearing the parties counsel relied upon Order 8, Rule 6-A of the Code of Civil Procedure(for short “the Code”). Reliance was also placed on the decision of this Court in the case of Bank of Baroda v. Sh. Gurcharan Singh, 1986 PLJ 43 : (AIR 1986 P & H 252) wherein it was held that such a plea should have been taken before the filing of the written statement. It has not been done and, therefore, Order 8, Rule 6-A of the Code would bar such a suit. The application was dismissed. Aggrieved by the same, present revision petition has been filed.
4. Order 8, Rule 6-A of the Code has been incorporated by virtue of the amendment of the Code w.e.f. 1-2-1977. It reads as under :–
“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.”
5. The controversy between the parties herein is with respect to the words occurring in Order 8, Rule 6-A of the Code whereby it states that by way of counter-claim against the claim of the plaintiff with respect to a cause of action accruing 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, can set up the claim. The same has been incorporated in the Code of Civil Procedure to avoid multiplicity of proceedings and to ensure that all disputes between the parties, if possible, be adjudicated in the same proceedings.
6. On behalf of the petitioner, it has been submitted that cause of action had arisen before the written statement was filed and, therefore, counter-claim could be set up. On the contrary, respondents contention was that it could only be set up before filing of the written statement.
7. Respondents’ learned counsel strongly relied upon the decision of this Court in Bank of Baroda’s case (AIR 1986 P & H 252) (supra) wherein this Court held that counter-claim can be set up prior to the filing of the written statement and not subsequent thereto. The precise findings of the learned single Judge reads as under :–
“….. From a reading of the rules, it is clear that the defendant can file the counter-claim before delivering his defence or before the time limited for delivering his defence expires. He has also to mention that fact in the written statement. It is thus evident that the defendant can file the counter-claim before he files the written statement, and cannot be allowed to do so by amending the written statement. The object of incorporating the provision for setting up the counter-claim before the filing of the written statement appears to be that the disposal of the suit may not be delayed. In the present case, the defendant has been allowed to set up a counter-claim even after the suit had been decreed against him, which, in my view, could not be done.”
8. The attention of the Court was also drawn towards a Division Bench judgment of Orissa High Court in the case of Mangulu Pirai v. Prafulla Kumar Singh, AIR 1989 Orissa 50. Orissa High Court took the same view as was taken by the learned single Judge of this Court and held as under at page 51 :–
“…… In other words, the enabling provision introduced by the 1976 amendment entitles a defendant in a suit to set up by way of counterclaim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to him 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.” But any cause of action which may arise after the filing of the written statement by the defendant or after the expiry of the date for filing the defence will not come within the scope of Rule 6A(1). There is no other limitation for filing a counter-claim as otherwise that would defeat the law of limitation. The restriction regarding the limit of the accrual of the period of the cause of action is based upon sound public policy, as otherwise the defendant may go on filing one counter-claim after another against the plaintiff in the same suit until it was disposed of and thus the suit may be indefinitely delayed …..”
9. Even in the case of Shri Tej Pal Kesri v. Dr. Mohan Lal Sharma, 1989 (96) Pun LR 480, the facts were that a suit was filed for rendition of accounts. During the pendency of the suit; mother of the parties expired. A counter-claim was filed that the property left by their mother in the house has to be accounted for. It was held that a separate suit should be filed. However, this decision is patently confined to its peculiar fact rather than strict scope of Order 8, Rule 6-A of the Code.
10. Since there is a decision of a Hon’ble single Judge of this Court and if a different view is to be taken, normally one would have to refer it to a larger Bench but the matter as such is concluded by the decision of the Apex Court and, therefore, it becomes unnecessary to do so.
11. Reference in this connection can also be made to plethora of precedents from other Courts to the contrary. In the case of Smt. Parvathamma v. K.R. Lokanath, AIR 1991 Kant 283, the scope of Order 8, Rule 6-A of the Code was considered and it was held that counter-claim could be claimed if cause of action had arisen before the filing of the written statement. In paragraph 6 of the judgment, the Karnataka High Court held as under :–
“…… What is laid down under Rule 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. Therefore, the counter-claim filed after filing the written statement cannot be held to be not maintainable, if the cause of action for the counter-claim had arisen before filing or the last date fixed for filing the written statement. Thus, it is clear that the counter-claim can be filed even subsequent to the filing of the written statement provided it relates to the cause of action which had accrued prior to the filing of the suit or prior to the filing of the written statement or prior to the last date fixed for filing the written statement.”
12. Same is the view of the Bombay High Court in the case of Datta Bandu Sadale v. Sridhar Payagonda Patil, AIR 1992 Bom 422. This Court in the case of Kohinoor Hosiery Mills v. New Bank of India, 1993 (3) Rec Rev R 367, held that counter-claim has to be set up within the period of limitation and not after the period of limitation expires.
13. Supreme Court considered this aspect in the case of Mahendra Kumar v. State of Madhya Pradesh, AIR 1987 SC 1395, wherein it was held that under Order 8, Rule 6-A of the Code, 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 to do so had expired. In paragraph 15 of the judgment, Supreme Court held as under :–
“The next point that remains to be considered is whether Rule 6A(1) of Order 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 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 counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not…..”
14. Similarly, in the decision rendered in the case of Jag Mohan Chawla v. Dera Radha Swami Satsang, AIR 1996 SC 2222 : (1996 AIR SCW 2722), same line was adopted and the Apex Court held as under (at page 2223 of AIR) :–
“….. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counterclaim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite Court-fee thereon……”
15. More recently, in the case of Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Day (dead) by L.Rs., 1998 (1) PLJ 667 : (AIR 1997 SC 3985), same view was expressed by the Supreme Court.
16. It is clear from the precedents quoted above that counter-claim can be filed if the cause of action to do so had arisen before the filing of the written statement or before the time limited for delivering the defence had expired. The language is plain and the meaning is clear. Therefore, it is unnecessary to ponder further in this regard. The reasoning of the learned trial Court thus cannot be sustained.
17. On this ground, thus, the application could not be dismissed. The order of the learned trial Court cannot be sustained.
18. As an offshoot of the reasons given above, the revision petition is allowed. The counterclaim set up be taken on record. Parties are left to bear their own costs.