ORDER
D.S.R. Varma, J.
1. Heard both sides.
2. This civil revision petition, under Article 227 of the Constitution of India, is directed against the order, dated 9-9-2004, passed by the Principal Junior Civil Judge, Nandyal, in LA. No. 465 of 2004 in O.S. No. 402 of 1999. By that order, the Court below dismissed the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure (for short ‘C.P.C’) praying to permit him to amend the written statement as proposed in the accompanying petition.
3. The revision petitioner is the defendant and the respondent is the plaintiff in the suit. It is expedient to refer the parties in this order as they were arrayed in the suit.
4. The facts, shorn of unnecessary details, are that the plaintiff filed the suit for declaration of title and injunction on various grounds. The defendant filed written statement repudiating the plaint pleadings – added to that he specifically pleaded that he has right over the suit schedule property by virtue an agreement of sale dated 17-4-1989 followed by a registered sale deed dated 6-10-1990. The various other circumstances mentioned therein are not very relevant for adjudication of the present case. The Trial Court dismissed the said application filed under Order VI Rule 17 CPC, holding that it is barred by limitation, as it was filed at a belated stage. Hence, this revision.
5. Learned Counsel for the petitioner contends that when the suit was filed for declaration of title and injunction, the plaintiff had also specifically taken a plea that he acquired title over the suit schedule property by way of an agreement of sale followed by a registered sale deed, which are already referred to above. That, in view of the said specific counter-claim regarding title though raised, the relief of possession was not sought for in the written statement. Therefore, it is felt imperative for the defendant to have the pleadings amended, particularly to the extent of claiming possession in addition to the specific plea taken in the written statement with regard to title.
6. On the other hand, Sri Bankatlal Mandhani, the learned Counsel appearing for the plaintiff-respondent, vehemently contends that though in general, Order VI Rule 17 C.P.C. petitions are to be allowed liberally, such discretionary jurisdiction must be exercised by the Courts for a justifiable reason but not for granting the reliefs, which are time barred. It is further contended that for seeking the relief of possession, the statutory period of limitation is three years and inasmuch as the present application had been filed beyond three years from the date of cause of action, the same is not permissible. Secondly, he contends that the application filed by the defendant is in the nature of an application under Order VIII Rule 6-A CPC in other words, the application filed under Order VI Rule 17 CPC, which in fact is in the nature of a counter-claim cannot be allowed at a belated stage since the issues had already been framed and trial of the suit had commenced and is at the stage of cross-examination of the plaintiff.
7. Sri Mandhani, learned Counsel for the respondent-plaintiff relied on the judgment of the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani, . It was a case where the scope of Order VIII Rule 6-A CPC was dealt with. In that case the defendant without filing written statement, filed a counter-claim. In such circumstances, their Lordships held that when the defendant fails to file the written statement, he has no right to file a counterclaim. In this brief scenario it was observed by their Lordships as follows:
“Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counterclaim against the claim of the petitioner preferred in exercise of legal right conferred by Rule 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 Rule 9. in the latter two cases the counter-claim though referable to Rule-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC, if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC, if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court’s time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading could be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counterclaim therein. Equally there would be no question of a counter-claim being raised by way of ‘subsequent pleading’ as there is no ‘previous pleading’ on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant.”
8. In the light of the above judgment, first of all it is to be seen whether the application filed by the defendant is indeed an application filed under Order VI Rule 17 CPC or an application filed under Order VIII Rule 6-A CPC. The contents of the interlocutory application, which is made part of the record, to the relevant extent is extracted as under:-
“15. The value of counter-claim
The value of the schedule house is Rs. 1,03,064/- as valued by the plaintiff as per Sub-Registrar valuation.
The value for the counter-claim for seeking delivery of possession is half of the market value as per Section 24(b) is Rs. 51,532/-
A Court Fees of Rs. 2,466/- is paid under Section-24(b) of the A.P.C.F. and S.V. Act of 1956.
The defendant therefore prays that the Hon’ble Court may be pleased to
(a) dismiss the suit of the plaintiff;
(b) allow the counter-claim of the defendant and declare the tide of the defendant to the plaint schedule property; and
(c) to direct the plaintiff to deliver the vacant possession of the plaint schedule property within the time granted by the Hon’ble Court failing which get the vacant possession through process of law at the expenses of the plaintiff;
(d) to award costs;
(e) and grant such other reliefs as the Hon’ble Court deems fit and proper in the circumstances of the case.”
9. From the above, it is abundantly clear that though the application was filed under Order VI Rule 17 C.P.C., in fact it is only a counter-claim. In other words, from the language employed in the said application it is abundantly clear that it has all the trappings of a counter-claim rather than a mere amendment to the written statement.
10. Therefore, the present controversy has to be examined from the point of view of allowing or disallowing a counter-claim rather than allowing or disallowing an application filed under Order VI Rule 17 CPC, since as already pointed out, the application filed by the defendant was absolutely more in the nature of a counterclaim, than amendment to the written statement. In such a case, it is to be examined as to what are the limitations under which a counter-claim can be filed and be permitted by the Court.
11. The settled principle of law as enunciated by the Apex Court in Jag Mohan Chawla v. Dera Radha Swami Satsang, , is as follows:
“It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC, but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In Sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words “any right or claim in respect of a cause of action accruing with the defendant” would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. 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 counter-claim 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. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the Legislature intended to try both the suit and the counter-claim in the suit as suit and cross-suit and have them disposed of in the same trial.”
12. A reading of the above decision, makes it clear that the only limitation for filing counter-claim under Order VIII Rule 6-A CPC, is that the cause of action should arise before the expiry of the period for filing written statement and for the purpose of filing a counter-claim or cross-suit, there need not necessarily be any nexus with the present suit and the claim in the counter-claim.
13. Further, the learned Counsel heavily relied on the judgment of the Apex Court in Pankaja v. Yellappa, 2004 AIR SCW 4522. In the said case there was an application filed by the plaintiff under Order VI Rule 17 CPC. The dismissal of the said application by the Trial Court was confirmed by the High Court, but, however, the Apex Court reversed the same. The main ground for the Apex Court to set-aside the impugned order therein, while directing the Trial Court to frame necessary issue with regard to the question of limitation, was that there was an arguable question with regard to limitation for seeking the relief of declaration, and whether the facts of the case falls under Entry 16 or Entry 64 to 68 of the Limitation Act. The exercise in those circumstances was held to be done only by the Trial Court. But, it is to be noticed that the established principle is that the Court cannot enlarge the period of limitation specifically postulated by a Statue. Further, it was observed by Apex Court in Pankaja’s case (supra), based on its earlier judgments, that when there was a dispute with regard to limitation, in ordinary course it was always expedient for the Courts to frame an issue and decide the same. But, the note-worthy fact in the said case was that the application under Order VI Rule 17 C.P.C. was filed by the plaintiff seeking a relief in addition to the one, which has already been sought. It was a matter of dispute as to whether the additional relief sought was barred by limitation or not and hence, in those circumstances the Apex Court in Pankaja’s case (supra) remitted the matter to the Trial Court with a direction to frame a suitable issue with regard to limitation and decide the same.
14. Per contra, in the instant case, an interlocutory application under Order VI Rule 17 CPC had been filed by the defendant. The title as claimed by the plaintiff in the plaint averments had already been refuted by the defendant in the written statement basing his right on a registered sale deed. But, the relief of possession had not been sought for. Hence, the application had been filed seeking relief of possession also.
15. In this backdrop, it is to be noted that when the defendant is seeking the relief of possession, particularly in the light of denial of the right of the plaintiff over the petition schedule property, he need not necessarily be estopped from filing a counter-claim.
16. Furthermore, it is to be noticed and as already pointed out that though the application had been filed under Order VI Rule 17 CPC it has got all the trappings of Order VIII Rule 6-A and hence, it should be treated only as an application filed under Order VIII Rule 6-A and as such a counterclaim only.
17. Therefore, the quintessence of the above judgments of the Apex Court is that when the defendant files a counter-claim, for entertaining the same, the question of limitation for the purpose of cause of action does not arise and the only limitation for entertaining the same is that whether the cause of action for filing the counter-claim arose before the expiry of the time fixed for filing of the written statement.
18. Even otherwise, as pointed out by the Apex Court in Pankaja’ case (supra) any such question of limitation if raised by the plaintiff should be gone into by the Trial Court alone and precisely, that is the reason why the Apex Court in the said case found fault with the order of dismissal of Trial Court which was confirmed by the High Court and remitted the matter to the Trial Court for fresh consideration after framing necessary issues.
19. Therefore, viewed from any angle, notwithstanding whether the application is filed under Order VI Rule 17 CPC or Order VIII Rule 6-A CPC, the same has necessarily to be gone into by the Trial Court. In the instant case, as already held, the interlocutory application though filed under Order VI Rule 17 CPC is couched with all the trappings of Order VIII Rule 6-A C.P.C. and therefore, it should be treated as a counter-claim.
20. For the foregoing reasons, the order under challenge in the present revision petition is liable to be set-aside and is accordingly set-aside.
21. In the result, the civil revision petition is allowed and the order dated 9-9-2004 in I.A. No. 465 of 2004 in O.S. No. 402 of 1999 on the file of the Principal Junior Civil Judge, Nandyal is set aside. No order as to costs.