Summary
In a 2004 suit for specific performance on the Original Side of the Bombay High Court, the defendant lodged a counter-claim for possession many years after his written statement but before issues were framed. After the first lodging was returned for want of leave, a Single Judge granted leave to avoid multiplicity of proceedings, keeping limitation and other defences open. The Division Bench set that order aside and remitted the motion because the plaintiffs had not been heard. The Supreme Court held that neither Order VIII Rule 6-A CPC, Rule 95 of the Original Side Rules nor Ashok Kumar Kalra barred the counter-claim, since it was filed before issues were framed. It also held that the Court's earlier order of 26.02.2021 had treated the counter-claim as part of the record. The Single Judge's order was restored.
Issues
- Whether a counter-claim filed long after the written statement but before the framing of issues could be taken on record under Order VIII Rule 6-A CPC and Rule 95 of the Bombay High Court (Original Side) Rules.
- Whether the Division Bench was justified in setting aside the Single Judge's grant of leave and remitting the notice of motion for fresh decision.
- What effect the Supreme Court's earlier consent order in the same suit, which bound proposed purchasers to adopt the defendant's written statement and counter-claim, had on reopening the question.
Provisions considered
- Order VIII Rule 6-A, Code of Civil Procedure, 1908Read with Ashok Kumar Kalra: the rule does not bar a counter-claim after the written statement, but the court's discretion is ordinarily pegged to the framing of issues. As this counter-claim was presented before issues were framed, the rule was no bar. (¶¶ 12, 13, 14, 14.1)
- Rule 95, Bombay High Court (Original Side) RulesTreated as being to the same effect as Order VIII Rule 6-A; it too did not prevent leave being granted for the counter-claim in the circumstances of the case. (¶¶ 12, 14.1)
Held
- Rules of procedure exist to serve justice, not to punish parties. A counter-claim cannot be shut out merely because it comes long after the written statement. Here it was filed before issues were framed, and the defendant gave reasons, including the succession dispute that was resolved only in 2017 and the need to avoid multiplicity of proceedings. (¶ 14)
- The Single Judge's order granting leave, which kept all of the plaintiffs' defences open, including limitation, was just and proper even though it was passed on the first day of hearing. The Division Bench had no justified reason to interfere. (¶¶ 14, 14.1)
- Although the earlier special leave petition concerned the transfer of the suit property, the Court's order of 26.02.2021, passed with the plaintiffs present, treated the counter-claim on record as a fait accompli and directed that the suit proceed from its existing stage. The Division Bench failed to consider that order, and there was no ground for reopening the question. (¶¶ 15.1, 15.2, 15.3, 15.4)
- By the time the Division Bench interfered, the plaintiffs had filed a written statement to the counter-claim, issues had been framed on it and the plaintiffs' evidence had been recorded. The cursory remand ignored the law, the progress of the suit and the directions for expedition. (¶¶ 16, 16.1)
- Whether an intra-court appeal lay against the order of 02.05.2019 was left open. (¶ 17)
Result
Appeal allowed. The Division Bench's order was set aside and the Single Judge's order of 02.05.2019, taking the counter-claim on record, was restored. The parties were to cooperate in the early disposal of the suit. No costs.