IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.4.2007 CORAM THE HON'BLE MR.JUSTICE S.ASHOK KUMAR CRP (PD) No.930 of 2007 and M.P. No.1 of 2007 Mrs.J.Surja Devi Bagmar ... Petitioner Vs Mr.Haji M.A.Rahman ... Respondent Civil Revision Petitions are filed under Article 227 of the Constitution of India against the order dated 27.2.2007 made in IA.No.2483 of 2007 in OS.No:8802 of 2005 passed by the learned XV Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.S.Sundaresan, S.C., For Respondent : Mr.K.S.Rajasekar ORDER
This Civil Revision Petition has been filed as against the order dated 27.2.2007 made in IA.No.2483 of 2007 in OS.No:8802 of 2005 passed by the learned XV Assistant Judge, City Civil Court, Chennai, dismissing the I.A., filed to entertain the counter claim made by the revision petitioner/defendant.
2. The suit has been filed by the respondent/plaintiff to direct the petitioner/respondent to issue NOC and such other certificates which are necessary to cancel the hypothecation of the four Wheeler TATA SUMO, bearing Regn.No:TN 07 GH 6588 with the RTO, Thiruvanmiyur and to declare that the signed blank promissory note and two blank whete papers and the promissory note filed for Rs.25,600/= and alleged hand letter as null and void. The defendant also filed her written statement. Pending the suit, the defendant filed the Interlocutory Application to file a counter claim. According to the defendant there is no new case set up by her in the counter claim and all the averments in the counter claim have already been raised in the written statement. However, in the prayer portion counter claim has been omitted and stamp duty has not been paid for the same.
3. The plaintiff resisted the said application contending that there is a time limit even to make counter claim under Order VIII Rule 6A CPC. The counter claim is based on the alleged promissory note and there is no details as to the execution and the plaintiff has nothing to do with the said transaction. Further, the condition stipulated in Order VIII Rule 6B has not been complied with as the defendant in his written statement has never specified about the counter claim.
4. The learned XV Assistant Judge, City Civil Court, Chennai, dismissed the application, mainly relying on the judgment of the Karnataka High Court in Parvathamma Vs. K.R.Lokanath (AIR 1991 Kar.283), wherein it has been held that that counter claim if not set up in the written statement, it has to be set up before framing of issues and at any rate, before recording of the evidence commences and in the present case since evidence has commenced, the counter claim cannot be entertained. Aggrieved of the same, the present revision is filed by the defendant.
5. Learned Senior Counsel appearing for the revision petitioner contended that there is no limitation prescribed under Order 8, Rule 6A to file counter claim and it is sufficient to show that the cause of action for counter claim accrues to the defendant against the plaintiff either before or after filing of the suit, but before the defendant had delivered his defence or before the time limit for delivering his defence expires. According to the learned senior counsel in fact the defendant has raised her counter claim even in her reply notice as well as in the written statement and the plaintiff has also admitted the execution of the promissory note and hence the cause of action accrued before the defence has been delivered and hence the application is maintainable.
6. As rightly pointed out by the learned senior counsel appearing for the revision petitioner, a perusal of the reply notice dated 27.11.2005, which is prior to the filing of the written statement itself would show that the defendant has made a counter claim of Rs.25,600/= with penal interest for discharge of the NOC. A reading of the written statement would also make it clear that the plaintiff has not settled all the dues in respect of the hire purchase agreement.
7. Further, the right to file counter claim under Rule 6A of Order VIII CPC is referable to the date of accrual of the cause of action. If the cause of action continued upto the date of filing written statement, such counter claim can be filed even after filing written statement as has been held in mahendra Kumar and others Vs. State of Madhya Pradesh and others reported in 1987 (3) SCC 265 which has been followed by in 1998 (1) MLJ 34 (SC) also. In the present case, the plaintiff as P.W.1 admitted the execution of promissory note in his evidence and even seeking for setting aside the demand promissory note. Since the promissory note executed to satisfy the amounts due in the hire purchase agreement and arising out of the same transaction, the counter claim is very well maintainable. Therefore, the caue of action accrued before the defence has been delivered. Further, the counter claim is to be entertained to avoid multiplicity of proceedings and all the essential averements in that regard has also been raised in the written statement. Since there is a omission to make a specific prayer in that regard and payment of separate court fee thereof, the Interlocutory Application has been filed regarding the same.
8. In the decision rendered in AIR 1991 Karnataka 283, cited supra, it has been only stated that a counter claim if not set in the written statement, it has to be set up before the issues are framed, at any rate, before recording of the evidence commences. It is also held therein that if a counter claim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit because at the time of adducing evidence, he will not be aware of the counter claim, as it will not be on record. But we should not lose sight of the the legislative intendment in enacting Order VIII Rule 6.A. I am of the view that such a provision has been inserted only to avoid multiplicity of proceedings and therefore there cannot be any hard and fast rule as to the period before which the counter claim has to be filed by the defendant in a pending suit. If the decision rendered by the Karnataka High Court, cited supra, is to be accepted then it will defeat the very purpose of the enabling provision of the Code. In the present case only chief examination of P.W.1 is over and therefore it is always open to the plaintiff on defendant being permitted to file the counter claim to file his written statement to the such counter claim and also examination of witnesses in that regard.
9. As regards limitation for making the counter claim, the Hon’ble Supreme Court in AIR 1987 SC 1395 (Mahendra Kumar Vs. State of M.P.) held as follows:
“15. The next point 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. Under Art.113, Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under S.3(2)(b), Limitation Act, had been filed by the appellants within three years from the date of accrual to them of the right to sue. The Learned District Judge and the High Court were wrong in dismissing the counter claim.”
10. From the above decision of the Apex Court it is clear that the counter claim being treated as a suit under Section 3(2)(b) of the Limitation Act, the limitation is three years from the date of accrual of the right of cause of action and therefore, the counter claim is very well maintainable.
11. For the reasons stated above, this CRP is allowed setting aside the order of the trial court made in I.A.No.2483 of 2007 in O.S.No:8802 of 2005 on the file of the XV Assistant Judge, City Civil Court, Chennai. Consequently, connected M.P., is closed. No costs.
gkv
TO
The Registrar,
City Civil Court,
Chennai.
[PRV/10174]