G H ASHOK KUMAR KALRA versus WING CDR. SURENDRA AGNIHOTRI & ORS.

Citation: [2019] 17 S.C.R. 214 · Decided: 19-11-2019 · Supreme Court of India · Bench: N.V. RAMANA, MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI · Disposal: Reference answered

Cited by 2 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 17 S.C.R.
ASHOK KUMAR KALRA
v.
WING CDR. SURENDRA AGNIHOTRI & ORS.
(Special Leave Petition (C) No. 23599 of 2018)
NOVEMBER 19, 2019
[N. V. RAMANA, MOHAN M. SHANTANAGOUDAR
AND AJAY RASTOGI, JJ.]
Code of Civil Procedure, 1908 – Or. VIII, r. 6A – Filing of
counter-claim by defendant after submitting written statement –
Embargo on, if any – Respondent No.1 filed suit for specific
performance against the petitioner – Petitioner filed written
statement – Thereafter, filed counter-claim – Trial court rejected
the objections on filing of the counter-claim after filing of the
written statement and framing of issues – High Court quashed the
counter-claim – Petitioner approached the Supreme Court –
Reference order passed by two-Judge Bench seeking clarification
from larger bench as to the interpretation of Or. VIII, r.6A regarding
the filing of counter-claim by defendant in suit – Answering the
reference, held: Per N.V. Ramana, Mohan M. Shantanagoudar and
Ajay Rastogi, JJ. To avoid multiplicity of proceedings, the counter-
claim by way of r.6A was inserted in the CPC by 1976 Amendment
Act – Or. VIII, r. 6A does not put an embargo on filing the counter-
claim after filing the written statement, rather the restriction is only
with respect to the accrual of the cause of action– However, this
does not give absolute right to the defendant to file the counter-
claim with substantive delay, even if the limitation period
prescribed has not elapsed – Court has to take into consideration
the outer limit for filing the counter-claim which is pegged till the
issues are framed, after evaluating inclusive factors, which are only
illustrative and not exhaustive, viz., period of delay; prescribed
limitation period for the cause of action pleaded; reason for the
delay etc. – Per Mohan M. Shantanagoudar, J. (Partly
Supplementing and Partly Dissenting) Court may exercise its
discretion and permit the filing of counter-claim after the written
statement, till the stage of framing of the issues of the trial –
However, in exceptional circumstances, the subsequent filing of
counter-claim may be permitted till the stage of commencement of
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recording of the evidence on behalf of the plaintiff as there is no
significant development in the legal proceedings during the
intervening period between framing of issues and commencement
of recording of evidence – Code of Civil Procedure (Amendment)
Act of 1976 – Code of Civil Procedure (Amendment) Act, 2002 –
Limitation Act, 1963 – s.3(2)(b)(ii).
Code of Civil Procedure, 1908 – Or. VIII – Scheme of –
Held: Whole scheme of Or. VIII unequivocally points out at the
legislative intent to advance the cause of justice by placing embargo
on the belated filing of written statement, set-off and counter-claim.
Code of Civil Procedure, 1908 – Filing of belated counter-
claim – Factors to be considered – Discussed.
Jurisprudence – Procedural justice vis-a-vis substantive
justice – Balanced approach towards – Discussed – Civil
Procedure Code, 1908 – Or. VIII, r. 6A – Limitation Act, 1963.
Code of Civil Procedure, 1908 – Or. VIII, rr. 6A, 9, 10 and
Or. VI, r.17 – Power of Court under – Held: Per Mohan M.
Shantanagoudar, J. (Supplementing) Conjoint and harmonious
reading of rr. 6A, 9 & 10 of Or. VIII and Or. VI, r. 17, CPC reveals
that the Court is vested with the discretion to allow the filing of
counter-claim even after the filing of the written statement, as long
as the same is within the limitation prescribed under the 1963 Act
– Limitation Act, 1963.
Code of Civil Procedure, 1908 – Or. VIII, r. 6A, 6B – Plea
of respondent, relying on r.6B, that r.6A(1) requires that the cause
of action for counter-claim should arise before the filing of the
written statement – Held: Per Mohan M. Shantanagoudar, J.
(Supplementing) Not agreed with, for two reasons- (i) It is possible
that at the time of filing the written statement, the defendant is
unaware of the facts giving rise to the cause of action for his
counter-claim (ii) perusal of Or.VIII, r. 6B suggests that it is only
limited to cases where the counter-claim is made along with the
written statement – Provisions u/Or. VIII should not be read in
isolation, but in a conjoint and harmonious manner – Rule 6B
cannot be read as limitation on the Court’s discretion to permit the
filing of belated counter-claim.
ASHOK KUMAR KALRA v. WING CDR. SURENDRA
AGNIHOTRI & ORS.
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SUPRE

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