Calcutta High Court: In a revision petition challenging the impugned order allowing the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (CPC) seeking amendment to the written statement and permission to file a counterclaim, a single-judge bench comprising of Biswaroop Chowdhury,* J., allowed the revisional and the impugned order dated 16-03-2019 is set aside. The Court emphasised the importance of adhering to Rule 6A of Order 8 CPC when filing counterclaims, particularly when the cause of action arises after the filing of the written statement.
Factual Matrix
In the instant matter, the petitioner, a plaintiff in a partition suit, challenged the impugned order dated 16-03-2019 issued by the Civil Judge allowing the prayer of the opposite party no 1-defendant for an amendment under Order 6 Rule 17 of the CPC. The basis for the amendment was the creation of an obstruction by the petitioner in a common passage, leading to the filing of a complaint and proceedings under section 133 CrPC. The defendant contended that the plaintiff obstructed a common passage, leading to a police complaint and legal proceedings. The plaintiff allegedly installed a gate on the common passage, hindering the defendant’s movement and causing hardship.
Petitioner’s Grounds of Revision
The petitioner asserted that the trial court acted illegally and with material irregularity by considering the necessity to decide the existence of a pathway within the Nursing Home area. The petitioner claimed bias in the court’s finding that the amendment is necessary for the proper adjudication of the suit. It was alleged that the trial court failed to appreciate the exact state of affairs and points of law, resulting in an unjust order. The Petitioner further contended that the impugned order violates Rule 6A of Order 8 of the CPC, allowing counterclaims after the defendant’s written statement only if the cause of action arose before or during the written statement filing.
Court’s Analysis
The Court examined Rule 6A of Order 8 of the CPC, which allowed a defendant to set up a counter-claim against the plaintiff, whether the cause of action arises before or after the filing of the suit, subject to certain conditions. The Court noted that the cause of action for the counter-claim arose after filing the written statement. The Court opined that the counter-claims should generally be filed before framing issues.
The Court rejected the opposite party’s argument and stated that the court has the discretion to permit counterclaims if no injustice or irreparable loss is caused. The Court found that the trial court erred in permitting a counterclaim when the cause of action arose after filing the written statement. Citing various precedents, the Court emphasised that Rule 6A does not permit a counter-claim after the issues are framed and the suit has substantially proceeded.
Legal Principles
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The Court reinforced the limitation under Rule 6A of Order 8 for filing counterclaims after the defendant’s written statement.
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The Court highlighted the court’s discretion to permit belated counterclaims in exceptional circumstances.
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The Court clarified that the decision only addresses the right to file a counterclaim and not the merits of the amendment application.
Court’s Decision
The Court Allowed the revisional application and set aside the impugned order dated 16-03-2019. The Court clarified that the order does not prevent the opposite party from seeking an amendment without a counterclaim.
[Jharna Patra v. Sanjib Gayen, 2024 SCC OnLine Cal 488, order dated 19-01-2024]
*Judgment by Justice Biswaroop Chowdhury
Advocates who appeared in this case :
Mr. Tanmoy Mukherjee, Mr. Souvik Das, Mr. K.R. Ahmed, Mr. Rudranil Das, Mr. Soumava Santra, Counsel for the Petitioner
Mr. Animesh Paul, Mr. Haardikaa Rajdev, Counsel for the Opposite Party 1
