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Nirmalendu Mishra alias Jyotin Mishra & Others v/s Swapan Raj & Others

    C.O. No. 1115 of 2021
    Decided On, 02 August 2021
    At, High Court of Judicature at Calcutta
    For the Petitioners: Sounak Bhattacharya, Raghunath Das, Sounak Mondal, Advocates. For the Opposite Parties: Ashim Kumar Routh, Advocate.

Judgment Text
1. This is a contest between two sets of defendants, the petitioners being defendant nos. 5, 7, 24(ka) and 24(kha) and the opposite parties proforma defendant nos. 25 and 26 in the suit.

2. The dispute arises out of a suit for cancellation of a Deed of Exchange dated November 10, 1983 and for recovery of possession in respect of ‘ka’ schedule property against the predecessor of defendant nos. 1 to 8. The opposite party nos. 1 and 2 were arrayed as proforma defendant nos. 25 and 26 in the suit, bearing Title Suit No. 22 of 2003.

3. By the first impugned order, dated June 16, 2020, the trial court accepted the belated written statement filed by the defendant nos. 25 and 26/opposite party nos. 1 and 2 on contest with costs of Rs.9,000/. By the subsequent order dated March 9, 2021, the two applications of the revisionist petitioners, both under Order VIII Rule 6-C of the Code of Civil Procedure, were rejected on contest and the written statement, along with counter-claim, dated September 6, 2019 of opposite party nos. 1 and 2 was accepted.

4. Learned counsel for the petitioners contends that Order VIII Rule 6-A of the Code of Civil Procedure contemplates only counter-claims against the claim of the plaintiff. In the present case, the opposite party nos. 1 and 2 have filed the counter-claim against the defendants-petitioners as well. Such counter-claim against codefendants, it is argued, is not maintainable in law.

5. Learned counsel further contends that the counter-claim was ex facie barred by limitation since the same was filed after about 17 years from the date impugned in the counter-claim.

6. The show-cause of the opposite party nos. 1 and 2 as well as their written statement were accepted after about 17 years’ delay. It is argued that the information of the suit, received by the advocate for the opposite party nos. 1 and 2, was allegedly received after an order was passed by this court, rejecting the plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code, seeking to introduce a similar relief as sought in the counter-claim. Hence, the opposite party nos. 1 and 2, being proforma defendants in the suit, were set up by the plaintiffs to defeat the order of the High Court by introducing a time-barred counter-claim.

7. Learned counsel for the petitioner further contends that it is evident from the counter-claim that the cause of action therefor was the ‘threat of dispossession’ against the opposite party nos. 1 and 2, which did not disclose any cause of action for the relief sought, that is, recovery of possession. Hence, the trial court, it is argued, acted without jurisdiction in accepting the belated written statement and in rejecting the petitioner’s application for exclusion of such counterclaim.

8. Placing reliance on the judgment of Ananta Halder Vs. Haridashi Halder and others, reported at 2019 (1) ICC 182 (Cal), wherein this court had held, following a judgment of the Supreme Court and a previous order of this court, that unless costs were condition precedent of the rest of the order, acceptance of costs would not tantamount to estoppel debarring the person accepting cost from challenging the said order, learned counsel contends that the costs granted by the first impugned order was received by the advocate appearing for the petitioners in the court below erroneously, without taking proper instruction from his clients, which would not, ipso facto, debar the petitioners from preferring the instant challenge, since costs were not a pre-condition of accepting the written statement.

9. By placing reliance on Estate Officer, Haryana Urban Development Authority and another Vs. Gopi Chand Atreja, reported at (2019) 4 SCC 612, learned counsel for the petitioner argues that the Supreme Court categorically laid down the law that the failure of the lawyer to take timely steps, resulting in causing delay, cannot be recorded as a sufficient cause within the meaning of Section 5 of the Limitation Act and it was equally the duty of the appellants to see that the appeal be filed in time.

10. Next citing Kailash Vs. Nanhku and others, reported at (2005) 4 SCC 480, learned counsel for the petitioner submits that ordinarily the time-schedule prescribed by Order VIII Rule 1 of the Code has to be honoured and the defendant should be vigilant. Extension of time sought by the defendants for filing written statement can only be by way of exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. Hence, it was held by the Supreme Court that a prayer seeking time beyond the statutory limitation for filing written statement ought to be made in writing and the court may, indeed, put the defendants on terms, including imposition of compensatory costs, etc.

11. Learned Counsel next places reliance on Rohit Singh and others Vs. State of Bihar (Now State of Jharkhand) and others, reported at AIR (2007) SC 10, in support of the proposition that maintainability of a counter-claim under Order VIII Rule 6-A was in question in case the counter-claim contained therein was against co-defendants.

12. In reply, learned counsel appearing for the opposite party nos. 1 and 2 argues that, at the stage of accepting the written statement and entertaining the counter-claim, the court cannot go into the merits of the counter-claim.

13. As far as the first impugned order is concerned, the trial court exercised its judicial discretion to accept the written statement on the reasons given in the said order, upon imposing substantial costs of Rs.9,000/- on the opposite party nos. 1 and 2, which were accepted by the advocate for the said opposite parties in the court below. Hence, there is no scope of reopening of such order in revision.

14. The petitioners, it is argued, accepted the first impugned order by not challenging the same till the second impugned order was passed. As such, the first impugned order attained finality prior to filing of the revisional application.

15. That apart, learned counsel argues, Order VIII Rule 6-C of the Code can only be filed by plaintiffs and not co-defendants as done in the present case by the revisionist-petitioners. As far as the proposition, that no counter-claim is maintainable against co-defendants, it is argued that, in the present case, the reliefs in the counter-claim are directed not only towards the co-defendants but also the plaintiffs, which validates such a counter-claim.

16. Upon considering the submissions of the parties, it is evident from a plain reading of Order VIII Rules 6-A to 6-G of the Code, in particular sub-Rule (4) of Rule 6-A, that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. It is wellsettled that a counter-claim has to be decided independently of the suit and has the trappings of an independent suit. Thus, the provisions of Order VII Rule 11 of the Code, which are applicable to amendment of plaints, are also applicable to counter-claims.

17. Rule 11(d) stipulates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In the present case, the counter-claim made against the plaintiffs, challenging the deed executed by the plaintiffs on November 10, 1983 and the consequential relief of declaration of 1/8th share of the counter-claimants are palpably time barred.

18. That apart, in view of the said relief challenging the deed-in-question by a previous order dated August 14, 2019 passed by this court in C.O. No. 2720 of 2019, rejecting the amendment of the plaintiff in similar terms applying the proviso to Order VI Rule 17, the incorporation of the same relief by way of a counter-claim would be palpably barred. It is evident that the relief sought in the counterclaim against the plaintiffs is not only time-barred but specifically designed to defeat the order passed by this court in C.O. No. 2720 of 2019, rejecting such amendment.

19. Hence, the relief sought against the plaintiffs is palpably illusory.

20. That apart, the prayer for recovery of possession, sought against the co-defendants, which is the only relief remaining in the event the first two reliefs against the plaintiffs are negated, was claimed only against co-defendants. Since such prayer, in view of the first two prayers against the plaintiffs being patently time-barred, assumes the character of the main relief claimed in the counter-claim, such counter-claim is rendered to be solely against the co-defendants, thus, not maintainable. That apart, no cause of action for the relief of recovery of possession against the defendants is disclosed in the counter-claim in so far as paragraph 4 thereof categorically pleads that the revisionist petitioners merely threatened the counterclaimants/ opposite party nos. 1 and 2 to dispossess from the suit property. The threat of dispossession is not equivalent to dispossession and, as such, is not a cause of action at all, rather contrary, to the relief of recovery of possession claimed against the defendants.

21. What the plaintiffs could not achieve directly in view of rejection of their similar amendment application previously, they sought to claim indirectly by setting up the opposite party nos. 1 and 2, who claimed such relief, which was already refused to be incorporated by this Court, in the garb of the counter-claim of recovery of possession against the defendants. It is well-settled that, what cannot be directly granted in law cannot be obtained indirectly. Hence, the effort of the opposite party nos. 1 and 2 to insert the relief of recovery of possession against the co-defendants is an oblique and mala fide attempt to defeat the previous order of this court.

22. The counter-claim against the plaintiffs is a sham relief claimed merely to by-pass the rejection of the same prayer in the form of amendment sought by the plaintiffs previously by this court and is patently time-barred.

23. The relief sought against the co-defendants/petitioners, thus, becomes the sole primary relief claimed in the counter-claim, independent of the reliefs claimed against the plaintiffs, which renders the counter-claim non-maintainable in view of the specific language of Order VIII Rule 6-A, which stipulates that counter-claims can be filed only against the plaintiffs.

24. As far as the applicability of Order VIII Rule 6-A of the Code is concerned, the subsequent application for exclusion of the counterclaim by the petitioners, although not maintainable in law, loses relevance in view of the acceptance of written statement itself being patently illegal and amounting to permit an ex facie time-barred relief to be incorporated by way of counter-claim. Such an effort ought to be nipped in the bud, as held by the Hon’ble Supreme Court in the context of rejection of plaints.

25. As far as the acceptance of costs by the advocate of the petitioners in the court below is concerned, it is evident from the first impugned order, bearing Order No.87 dated June 16, 2020 that the said cost was not a condition precedent for acceptance of the show-cause and the written statement filed by the opposite party nos. 1 and 2. The language of the said order clearly shows that the costs were directed over and above such acceptance. In fact, the impugned order dated June 16, 2020 reveals clearly that the trial court directed only the hearing of the petition under Order VIII Rule 6 of the Code of Civil Procedure after payment of such costs. Such stipulation is not a condition precedent for accepting the written statement or the showcause for late filing of the same but was merely to precede the hearing of the Order VIII Rule 6 applications. Thus, the acceptance of such costs by the advocate for the petitioners in the court below cannot, ipso facto, preclude the petitioners from preferring the instant challenge.

26. However, for the ends of justice, such costs ought to be returned to the opposite party nos. 1 and 2 in view of this Court being

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of the opinion, on the grounds as discussed above, that Order No.87 dated June 16, 2020 was passed without jurisdiction. 27. Accordingly, C.O. No.1115 of 2021 is disposed of setting aside Order No.87 dated June 16, 2020 passed by the Civil Judge (Junior Division), Second Court at Contai, District- Purba Medinipur in Title Suit No. 65 of 2013 and expunging the written statement and accompanying counter-claim filed by the opposite party nos. 1 and 2 from the records of the suit. As far as the second impugned order, bearing Order No.95 dated March 9, 2021, is concerned, in view of the rejection of the counter-claim, such rejection becomes academic and irrelevant. Thus, no further order need be passed in respect of the second impugned order. The petitioners shall refund the costs of Rs.9,000/- , received by their advocate in the court below, to the opposite party nos. 1 and 2, directly or through the latter’s advocate in the court below, within one week from date as a pre-condition of this order. In default of such payment within the stipulated period, this order shall stand automatically vacated, without further reference to court. 28. There will be no order as to costs. 29. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.