Ashok Kumar Kalra v Wing Cdr. Surendra Agnihotri

Author: Amisha Gupta

3rd Year BBA LL.B (Hons.)
University of Petroleum and Energy Studies, Dehradun

CITATION: [(2020) 2 MLJ 189 (SC): LNIND 2019 SC 924]

1. INTRODUCTION

The Hon’ble Supreme Court, in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri expressed that Order VIII Rule 6A of CPC has removed their rule to put an embargo on submitting a counterclaim after filing a written assertion, but this doesn’t provide an absolute right to the Defendant to report counterclaim with noticeable put-off, even though the limitation length prescribed has not elapsed. 

2. FACTS

A dispute arose among the Petitioner (Defendant no. 2) and Respondent No. 1 (Plaintiff) regarding the overall performance of settlement to sale dated 20.11.1987 and 04.10.1989. Respondent No.1 (plaintiff) filed the suit for a unique performance towards the petitioner (defendant no. 2) on 02.05.2008. Petitioner (defendant No.2) herein filed a Written Statement on 2.12.2008 and counter-declare on 15.3.2009, in the identical suit. By order dated 12.05.2009, the trial court rejected the objections, concerning the filing of the counter-claim after filing of the written statement and formation of issues. Order dated 15.05.2009 changed into challenged before the High Court, in Civil Revision No. 253 of 2009, the High Court allowed the identical and quashed the counter-claim. Aggrieved by the aforesaid order of the High Court, the petitioner (defendant No.2) herein approached the Division Bench of this court docket, which has referred the problem to a three-Judge Bench.

The counsel of the Plaintiff was relying upon that counterclaim can save the time of the court by preventing multiple institutions of cases. They relied on several judgments[1]. On the other side, the Defendant argues that it is compulsory to file a counterclaim with a written statement only, as per the Order VIII Rule 6A of the CPC.

3. JUDGMENT

The bench referred the case, Mahendra Kumar and Anr. v. The State Of Madhya Pradesh and Ors[2] [which is also referred to as Mahendra Kumar Case], in which it was stated that Rule 6A(1) does not bar the filing of a counter-declare through the defendant after the filing of the written statement. As the motive of motion for the counter-claim had arisen earlier than the submitting of the written announcement, the counter-declare was held to be maintainable.

This Court besides expressed that, as per Article 113 of the Limitation Act, 1963, the period of the problem is 3 years from the date of the proper to sue accrues when the period of difficulty hasn’t furnished someplace else within the Schedule. As the counter-declare changed into filed inside 3 years from the date of accrual of the proper use, this Court held that the discovered District Judge and the High Court were incorrect in dismissing the counter-declare.

By this, the court held that as per order VIII rule 6 CPC, we can’t embargo any counterclaim without any reasonable justification. Also, on the other hand, it is not the absolute rule but it is backed by the Limitation Period Act which states that the limitation period in which the counterclaim can be filed after filing of the written statement. The court introduced the inclusive list of factors on which it can determine the right to file in a counterclaim in various cases. Some of the factors are:

1)  duration between the two filed

2)  difference in period

3)  reason or the justification is given for the delay

4)  what will be the cost of the litigation or changes in that litigation

5)  its effect on the proceeding

6)  whether it causes more fairness to the case or not

7)  if the issues are framed then it will not be entertained anymore.

 

References:

[1] Salem Advocate Bar Association, Tamil Nadu v. Union Of India , AIR 2005 SC 3353 [LNIND 2005 SC 573],

Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (1969) 1 SCC 869 [LNIND 1969 SC 129

[2] (1987) 3 SCC 265 [LNIND 1987 SC 451].

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