IN THE GAUHATI HIGH COURT. (The High Court of Assam: Nagaland: Mizoram & Arunachal. Pradesh)

Transcription

1 IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Mizoram & Arunachal Pradesh) RSA 290 of Nandlal Rajbhore, Son of late Raj Narayan Rajbhore, 2. Smti Madia Rajbhore, 3. Smti Ram Darya Rajbhore 4. Smti Raj Kumari Rajbhore All daughters of late Raj Narayan Rajbhore, residents of Golokganj Bazar, P.S.Golokganj, Dist-Dhubri, Assam. -versus- Appellants 1. Kalyani Jain,Pirthiraj Jain Oswal, S/o late Dal Chand Jain, Golokganj Bazar, P.S.Golokganj, Dist-Dhubri, Assam on his death represented by his following legal heirs. 2. Mahendra Kumar Jain, 3. Narendra Kumar Jain, 4. Jai Kumar Jain, 5. Mahabir Jain, 6. Smti Manju Jain,D/o Late Pirthiraj Jain, W/o Jhanwarlal Jain, C/o Jain Supply Agency 4209 Gali Ahiran, Paharidhiraj, Delhi. 7. Smti Kusum Jain, D/o Pirthiraj Jain, W/o Tolokesh Jain,Vill- & PO-Mankachar, Dsit-Dhubri, Assam. 8. Smti Madhu Kothari, D/o Pirthiraj Jain, W/o Manik Kothari, vill & PO-Mankachar, District-Dhubri,Assam. 9. Smti Pushpa Lunawat, D/o Pirthiraj Jain,W/o Manoj Lonawat, C/o Ankita Traders, Serwani Road Cintam. 10.Smti Raju Toawat, D/o Pirthiraj Jain, W/o Manoj Tolawat, Athgaon, Neha Apartment, Block-6, 2 nd Floor, Guwahati.

2 11.Nimai Bose, Son of late Suren Bose, 12.Nanda Ghosh, Son of late Suren Bose, 13.Jugal Kar, Son of Hemanta Kar, Sl Nos are residents of South Totrerchora, PS-Golakganj, Dist-Dhubri,Assam..Respondents B E F O R E HON BLE MR. JUSTICE MANOJIT BHUYAN For the Appellants : Mr. A.Dasgupta, Ms. B.Das, Mr. B. Sarma, Advocates For Respondents : Mr. H K Deka, Mr. P. Sundhi, Mr. B.D.Deka, Advocates Date of Judgment : JUDGMENT & ORDER (CAV) Heard Mr. A. Dasgupta, learned senior counsel, assisted by Ms. B. Das, learned counsel for the appellants and Mr. B.D.Deka, learned counsel for the respondents. 1. In March, 2000 Title Suit No.354/2006 (original T.S.No.9/2000) was filed by the respondents herein for a decree for declaration of occupancy right over the suit land as well as for permanent injunction. The appellants as defendants filed written statement on and thereafter filed counter claim on claiming right, title and interest in the land and house as in Schedule B thereof; for a decree declaring that the appellants/defendants have no right, to claim tenancy; is a defaulter in the payment of rent and hence liable to be evicted; a decree for khas possession of the land and house as in Schedule B etc. 2. Upon pleadings of the parties to the suit, the Trial Court framed as many as 15 Issues and after taking note of the evidence on record and rival arguments dismissed the suit of the respondent/plaintiff and decreed the counter claim of the appellants/defendants vide judgment and decree dated and Being aggrieved, the respondent/plaintiff preferred Title Appeal No.7/2008. The point for determination revolved round two primary Issues- (i) whether the counter claim filed by the appellants/defendants is maintainable (ii) whether the respondent/plaintiff could establish that he is

3 an occupancy tenant in respect of the suit land. The First Appellate Court while holding that the respondent/plaintiff had failed to establish that he is an occupancy tenant in respect of the suit land, also held that the counter claim is not maintainable. Accordingly, the Title Appeal was partly allowed and both the suit of the respondent/plaintiff as well as the counter claim of the appellants/defendants were dismissed. 4. The First Appellate Court while arriving at the finding and decision that the counter claim was not maintainable, relied upon the provisions of Order 8 Rule 6 A of the Code of Civil Procedure as well as in the case of Bollepanda P.Poonacha and another -vs- K.M.Madapa, reported in 2008 SAR (Civil) 405 :: equivalent to (2008) 13 SCC 179. The First Appellate Court held that the counter claim was not maintainable as the same was filed after expiry of 10 months from the date of filing of the written statement and by referring to the statements made in the counter claim took note of the fact that the cause of action for the counter claim originally arose in the year 1999 and the appellants/defendants having filed written statement on and thereafter having filed the counter claim on , held that the said counter claim was apparently not maintainable. 5. On second appeal before this Court, the same was admitted for hearing vide order dated on the following substantial question of law: Whether the Courts below are justified in rejecting the counter claim filed by the defendants on the ground that the said counter claim under Order 8 Rule 6A CPC was filed after the filing of the written statement?. 6. An answer to the substantial question of law would require this Court to revisit the pleaded case of the parties and that of the provisions of Order 8 Rule 6A of the Code of Civil Procedure and the decision rendered in Bollepanda P.Poonacha and another -vs- K.M.Madapa (supra). 7. At the outset it would be apposite to extract the provisions of Order 8 Rule 6A of the Code of Civil Procedure : 6-A. Counter-claim by defendant.-(1) A defendant in a suit may, in addition to his right of pleadings 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 or damages or not: Provided that 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. (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 (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 8. The statutory limitation as enjoined in Order 8 Rule 6A is that for setting up a counter claim the cause of action must accrue to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has raised his defence. 9. In the instant case, according to the statements made in paragraph-11 to the counter claim, the cause of action for filing the counter claim arose in the year 1999; in the month of March, 2000 when the suit was filed; in the first week of April, 2001 (period during which the appellants/defendants had approached the respondent/plaintiff to pay rent) and on when notice under Section 106 of the Transfer of Property Act was received by the respondent/plaintiff. 10. Having regard to the date on which the written statement was filed by the appellants/ defendants i.e. on and having regard to the cause of action arising in terms of the pleadings at paragraph 11 to the counter claim, the answer to the substantial question of law so formulated can be had upon the determination whether the cause of action for filing the counter claim arose before or after filing of the written statement. 11. Mr.A.Dasgupta, learned senior counsel, appearing for the appellants, while maintaining that the counter claim was maintainable, relied upon the decision in Mahendra Kumar and another -vs- State of Madhya Pradesh and others, reported in AIR 1987 SC 1395 (paragraph 15). There can be no dispute as to the proposition laid down in the reported case, in as much as, in the said case the cause of action for the counter claim had arisen before the filing of the written statement and as such, the counter claim was held to be maintainable. In the instant case, the cause of action for filing the counter claim arose on , the date on which the notice sent by the appellants/defendants under Section 106 of the Transfer of Property Act was received by the respondent/plaintiff. Having regard to the date of receipt of the notice by the respondent/plaintiff i.e , there is no manner of doubt that the cause of action for filing the counter claim arose after the appellants/ defendants had delivered their defence by way of filing written statement on Mr.B.D.Deka, learned counsel for the respondent/plaintiff while maintaining that in view of the provision under Order 8 Rule 6A of the CPC the counter claim was not maintainable and the decision of the First Appellate Court do not require interference, relied upon the decision in Bollepanda P.Poonacha and another -vs- K.M.Madapa (supra). 13. The facts of the case cited by Mr.Deka vis-à-vis Order 8 Rule 6A of the Code of Civil Procedure is that subsequent to the filing of the written statement on , the defendants therein had filed an application for leave to file counter claim alleging that the cause of action for filing the said counter claim had arisen on when the suit was filed and in the summer of 1998 when the plaintiff therein had trespassed and encroached upon the lands belonging to the defendants therein. The said application was held to be not maintainable in the opinion of the Apex Court because of the explicit statement that had been made in the said application that the cause of action arose in the summer of Apparently, the cause of action arising in the summer of 1998 was after the filing of the written statement on In the instant case, the pleaded case of

5 the appellants/ defendants in the counter claim is that the cause of action had not only arisen in the year 1999 but also in March, 2000 when the suit was filed and on when notice under Section 106 of the Transfer of Property Act was received by the respondent/plaintiff. Thus, having regard to the date on which the written statement was filed i.e , the cause of action for filing the counter claim arose on a date subsequent to the filing of the written statement. 14. It is trite to say that statutory limitation cannot be overstepped and where there exist a statutory bar, the Court's jurisdiction cannot be exercised. Order 8 Rule 6A do not permit filing of a counter claim where cause of action arises after filing of the written statement. 15. In view of the above, the judgment and decree of the First Appellate Court does not call for interference in the absence of any substantial error resulting in any error in decision. There are no compelling reasons to interfere. The substantial question of law so formulated is answered in terms of the above and accordingly, this appeal stands dismissed, however, without any order as to costs.