In the instant case, admittedly the Written Statement was filed by the respondent/plaintiff in answer to the counter claim of the petitioners on 18-11-2016, nine years after such counter claim had been filed by the petitioners on 05-07-2018.=The Supreme Court had permitted extension of time beyond 90 days only in exceptionally hard cases. In the present case, the negligence of the respondent or his counsel in reading the Written Statement-cum- counter claim of petitioners and consequently failing to file his response cannot bring the case of the respondent in the category of an exceptionally hard case. By such erroneous exercise of jurisdiction, the Court below had practically nullified the period fixed by Order VIII Rule 1 CPC. Therefore, the Civil Revision Petition is allowed; order dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the Principal Junior Civil Judge, Punganur, is set aside; and the said I.A. is allowed and the Written Statement filed by the respondent/plaintiff in answer to the counter claim of the petitioners is struck off the record and shall not be considered for any purpose.
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
C.R.P.No.6712 of 2017
23-04-2018
Y.Venkata Ramana and two others....Petitioners
Yellaboyani Venkatamma @ Y.Munivenkatamma..Respondents.
Counsel for the petitioners: Sri V.Nitesh
Counsel for the respondent :Sri Gade Venkateswara Rao
<GIST:
>HEAD NOTE:
? Cases referred
(2005) 6 S.C.C. 344
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
C.R.P.No.6712 of 2017
ORDER:
This Revision Petition is filed by the petitioners under Article
227 of the Constitution of India challenging the order dt.12-10-2017
in I.A.No.101 of 2017 in O.S.No.290 of 2007 of the Principal Junior
Civil Judge, Punganur, Chittoor District.
2. The petitioners are defendants in the suit.
3. The said suit was filed by the respondent declaring that a
decree in respect of item-8 of O.S.No.178 of 1997 passed by the said
Court in I.ANo.1094 of 2003 on 12-02-2007 is not binding on the
respondent and for injunction restraining the petitioners from
interfering in any way with the peaceful possession and enjoyment of
the plaint schedule properties.
4. The said suit was filed on 05-11-2007. The petitioners
herein filed a Written Statement raising counter claim on 05-07-2008.
5. The respondent/plaintiff did not immediately file any
Written Statement to the said counter claim made by the petitioners.
6. After lapse of nine years, on 18-11-2016, without
permission of the Court, the respondent/plaintiff filed Written
Statement to the petitioners counter claim.
7. After the trial commenced in 2017, when the matter was
coming up for marking of documents and cross examination of P.W.1,
the petitioners/defendants filed I.A.No.101 of 2017 invoking Order
VIII Rules 6-A (3) and 6-G and Section 151 CPC praying the Court
to reject the Written Statement of the respondent/plaintiff filed in
answer to the counter claim of the petitioners/defendants without
leave of the Court.
8. In the affidavit filed in support of the said application,
they contended that the respondent having remained silent after the
filing of the counter claim by the petitioners, filed his answer to the
counter claim by way of Written Statement on 18-11-2016 along with
her chief examination affidavit without the leave of the Court and the
same is liable to be rejected since the rules relating to Written
Statement filed by a defendant shall apply to a Written Statement filed
by a plaintiff in answer to a counter claim made by the defendant.
9. Counter was filed by the respondent opposing this
application stating that copy of the Written Statement had not been
supplied to her; contents of the Written Statement filed by the
petitioners were not gone through by her counsel; and when the
respondent was preparing chief examination affidavit, she came to
know that the petitioners had filed counter claim; thereafter at the
request and also with the permission of the Court, she had filed
Written Statement answering counter claim filed by the petitioners
along with chief examination affidavit and document. She contended
that even during the marking of the documents, neither the petitioners
nor their counsel raised any objection in respect of filing of the
Written Statement by the respondent to the counter claim raised by the
petitioners and that the said application I.A.No.101 of 2017 was filed
only to protract the proceedings.
10. By order dt.12-10-2017, the Court below dismissed the
said application. It observed that counter claim had been filed on
05-07-2008 by the petitioners and the respondent had stated in his
affidavit in the I.A. that copy of the Written Statement filed by the
petitioners had not been supplied to her; and though the respondent
did not take any permission of the Court, as per Order VIII Rule 6-A
(3) of the CPC, the respondent was at liberty to file Written Statement
in answer to the counter claim of the petitioners within such period as
may be fixed by the Court. It held that the petitioners did not take any
objection at the time of filing of the Written Statement by the
respondent to the counter claim which was filed on 18-11-2016, that
later, the matter was posted for trial from time to time, and once the
Written Statement and counter claim filed by the petitioners are on
record, it is the duty of the respondent to file Written Statement in
answer to the counter claim. It observed that if at all there is any
grievance with regard to the title between the respondent and
petitioners, they can contest the suit by examining the witnesses and
by placing necessary documents.
11. Assailing the same, petitioners have filed this Revision
Petition.
12. Heard Sri V.Nitesh, learned counsel for the petitioners
and Sri Gade Venkateswara Rao, learned counsel for the respondent.
13. Learned counsel for the petitioners contended that the
provisions relating to filing of a Written Statement are made
applicable by order VII Rule 6-G to the filing of the Written
Statement in answer to a counter claim by a plaintiff also; that as per
proviso to Order VIII Rule 1, Written Statement had to be filed within
30 days unless the defendant is allowed to file the same on such other
day as may be specified by the Court for reasons to be recorded in
writing, but even such period shall not be later than 90 days from the
date of service of summons; and merely because at the time when the
respondent/plaintiff filed his Written Statement in answer to the
counter claim of the petitioners, no objection had been raised
specifically by the petitioners, the duty of the Court to record reasons
while receiving it when it is filed with a delay of nine years cannot be
abdicated by it; and the Court cannot absolve itself of such
responsibility particularly when such inordinate delay is there on the
part of respondent/plaintiff to file the Written Statement in answer to
the counter claim of the petitioners. He pointed out that even the
Court below had recorded a finding that the respondent/plaintiffs
counsel had received copies of the Written Statement and the plea of
the respondent/plaintiff that she was not supplied with copy of the
Written Statement-cum-counter claim is incorrect; and in such
circumstances, the exercise of jurisdiction by the Court below in
refusing to entertain the objection raised by the petitioners is
unsustainable. He contended that the Court below had failed to
exercise jurisdiction vested in it by law by refusing to reject the
Written Statement filed by respondent in answer to the counter claim
made by the petitioners.
14. Learned counsel for the respondent however refuted the
said contentions. He stated that since no objection had been raised at
the time of filing of the Written Statement by the respondent on
18-11-2016 to the counter claim made by the petitioners, the
petitioners are deemed to have waived any such objection and the
order passed by the Court below is correct.
15. I have noted the contentions of the parties.
16. From the facts narrated above, it is clear that the
petitioners, who are defendants in the suit, had filed Written
Statement-cum-counter claim on 05-07-2008. Nine years later, on
18-11-2016, without seeking permission of the Court, the
respondent/plaintiff filed his Written Statement in answer to the said
counter claim.
17. The question is whether the court below had rightly
exercised its discretion in dismissing petitioners application to reject
the said Written Statement filed by the respondent to the counter claim
by the petitioners or not?
18. Order VIII Rule 6 (A) permits a defendant, in addition to
his right of pleading a set-off under Rule 6, to raise by way of counter
claim against the claim of the plaintiff, any right or claim in respect of
cause of action accruing to the him against the plaintiff either or after
the filing of the suit. However, he is required to file the counter claim
before he delivered his defence or before the time limited for
delivering his defence has expired.
19. Order VIII Rule 6-G makes applicable the rules relating
to a Written Statement by a defendant to apply to a Written Statement
filed by the plaintiff in answer to a counter claim.
20. Therefore Order VIII Rule 1 CPC is applicable to the
respondent/plaintiff. It states:
R.1. Written Statement:- The defendant shall, within
thirty days from the date of service of summons onlhim, present
a Written Statement of his defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty days, he shall
be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing,
but which shall not be later than ninety days from the date of
service of summons.
21. This provision has been interrupted by the Supreme
Court in Salem Advocate Bar Association, T.N. Vs. Union of
India . The Supreme Court held that though a Written Statement had
to be filed within 30 days as per Act 46 of 1999, the rigour of this
provision was reduced by Amendment Act 22 of 2002 which enabled
the Court to extend the time for filing Written Statement on recording
sufficient reasons therefor, but the extension can be maximum of 90
days. It also considered the question whether the Court has any power
or jurisdiction to extend the period beyond 90 days. It held that
though maximum period of 90 days to file the Written Statement had
been provided, consequences on failure to file Written Statement
within the said period had not been provided for in Order VII Rule 1
CPC; that the provision in Order VIII Rule 1 providing that the higher
limit of 90 days to file Written Statement is directory, but however
added that the order extending time to file Written Statement cannot
be made in a routine manner, and time can be extended only in
exceptionally hard cases. It held that while extending time, it has to
be borne in mind that the Legislature has fixed the time limit of 90
days and the discretion of the Court to extend the time shall not be
frequently and routinely exercised so as to nullify the time fixed under
Order VIII Rule 1 CPC.
22. In the instant case, admittedly the Written Statement was
filed by the respondent/plaintiff in answer to the counter claim of the
petitioners on 18-11-2016, nine years after such counter claim had
been filed by the petitioners on 05-07-2018.
23. As per Order VIII Rule 1 CPC, such Written Statement
ought to have been filed by the respondent within 30 days from the
date of receipt of the Written Statement-cum- counter claim of the
petitioners.
24. As per the proviso to Rule 1 of Order VIII, the Court
normally had power to extend the time for filing such Written
Statement by the respondent to the counter claim made by the
petitioners only for a period not later than 90 days, that too for reasons
to be recorded in writing.
25. For such reasons to be recorded in writing, the
respondent/plaintiff should have filed an application seeking
permission of the Court to file such Written Statement in answer to
the counter claim of the petitioners beyond the period of 30 days.
26. Admittedly he did not do so. The fact that the respondent
did not do so and the petitioners did not object at the time of filing
such Written Statement in answer to the counter claim, in my
considered opinion, cannot absolve the Court below of its duty to
record reasons in writing why it received the Written Statement filed
by the respondent in answer to the counter claim of the petitioners
beyond the period of 30 days. Admittedly no such reasons have been
recorded by the Court below.
27. Also the only reason assigned by the respondent is that
he could not file the Written Statement in answer to the counter claim
of the petitioners within time was that copy of the Written Statement-
cum- counter claim had not been supplied to his counsel. Even the
Court below found this excuse to be incorrect on verifying the record.
28. Once this is so, no indulgence could have been shown by
the Court below to allow respondents Written Statement in answer to
the counter claim made by the petitioners and it ought to have rejected
the same by allowing the application filed by the petitioners. But it
had allowed the Written Statement filed by the respondent in answer
to the counter claim to remain on record, as a matter of routine, which
the Supreme Court in the above case said cannot be done.
29. The Supreme Court had permitted extension of time
beyond 90 days only in exceptionally hard cases. In the present case,
the negligence of the respondent or his counsel in reading the Written
Statement-cum- counter claim of petitioners and consequently failing
to file his response cannot bring the case of the respondent in the
category of an exceptionally hard case. By such erroneous exercise of
jurisdiction, the Court below had practically nullified the period fixed
by Order VIII Rule 1 CPC.
30. Therefore, the Civil Revision Petition is allowed; order
dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the
Principal Junior Civil Judge, Punganur, is set aside; and the said I.A.
is allowed and the Written Statement filed by the respondent/plaintiff
in answer to the counter claim of the petitioners is struck off the
record and shall not be considered for any purpose. No costs.
31. As a sequel, the miscellaneous petitions, if any pending,
shall stand closed.
_________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date: 23-04-2018
C.R.P.No.6712 of 2017
23-04-2018
Y.Venkata Ramana and two others....Petitioners
Yellaboyani Venkatamma @ Y.Munivenkatamma..Respondents.
Counsel for the petitioners: Sri V.Nitesh
Counsel for the respondent :Sri Gade Venkateswara Rao
<GIST:
>HEAD NOTE:
? Cases referred
(2005) 6 S.C.C. 344
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
C.R.P.No.6712 of 2017
ORDER:
This Revision Petition is filed by the petitioners under Article
227 of the Constitution of India challenging the order dt.12-10-2017
in I.A.No.101 of 2017 in O.S.No.290 of 2007 of the Principal Junior
Civil Judge, Punganur, Chittoor District.
2. The petitioners are defendants in the suit.
3. The said suit was filed by the respondent declaring that a
decree in respect of item-8 of O.S.No.178 of 1997 passed by the said
Court in I.ANo.1094 of 2003 on 12-02-2007 is not binding on the
respondent and for injunction restraining the petitioners from
interfering in any way with the peaceful possession and enjoyment of
the plaint schedule properties.
4. The said suit was filed on 05-11-2007. The petitioners
herein filed a Written Statement raising counter claim on 05-07-2008.
5. The respondent/plaintiff did not immediately file any
Written Statement to the said counter claim made by the petitioners.
6. After lapse of nine years, on 18-11-2016, without
permission of the Court, the respondent/plaintiff filed Written
Statement to the petitioners counter claim.
7. After the trial commenced in 2017, when the matter was
coming up for marking of documents and cross examination of P.W.1,
the petitioners/defendants filed I.A.No.101 of 2017 invoking Order
VIII Rules 6-A (3) and 6-G and Section 151 CPC praying the Court
to reject the Written Statement of the respondent/plaintiff filed in
answer to the counter claim of the petitioners/defendants without
leave of the Court.
8. In the affidavit filed in support of the said application,
they contended that the respondent having remained silent after the
filing of the counter claim by the petitioners, filed his answer to the
counter claim by way of Written Statement on 18-11-2016 along with
her chief examination affidavit without the leave of the Court and the
same is liable to be rejected since the rules relating to Written
Statement filed by a defendant shall apply to a Written Statement filed
by a plaintiff in answer to a counter claim made by the defendant.
9. Counter was filed by the respondent opposing this
application stating that copy of the Written Statement had not been
supplied to her; contents of the Written Statement filed by the
petitioners were not gone through by her counsel; and when the
respondent was preparing chief examination affidavit, she came to
know that the petitioners had filed counter claim; thereafter at the
request and also with the permission of the Court, she had filed
Written Statement answering counter claim filed by the petitioners
along with chief examination affidavit and document. She contended
that even during the marking of the documents, neither the petitioners
nor their counsel raised any objection in respect of filing of the
Written Statement by the respondent to the counter claim raised by the
petitioners and that the said application I.A.No.101 of 2017 was filed
only to protract the proceedings.
10. By order dt.12-10-2017, the Court below dismissed the
said application. It observed that counter claim had been filed on
05-07-2008 by the petitioners and the respondent had stated in his
affidavit in the I.A. that copy of the Written Statement filed by the
petitioners had not been supplied to her; and though the respondent
did not take any permission of the Court, as per Order VIII Rule 6-A
(3) of the CPC, the respondent was at liberty to file Written Statement
in answer to the counter claim of the petitioners within such period as
may be fixed by the Court. It held that the petitioners did not take any
objection at the time of filing of the Written Statement by the
respondent to the counter claim which was filed on 18-11-2016, that
later, the matter was posted for trial from time to time, and once the
Written Statement and counter claim filed by the petitioners are on
record, it is the duty of the respondent to file Written Statement in
answer to the counter claim. It observed that if at all there is any
grievance with regard to the title between the respondent and
petitioners, they can contest the suit by examining the witnesses and
by placing necessary documents.
11. Assailing the same, petitioners have filed this Revision
Petition.
12. Heard Sri V.Nitesh, learned counsel for the petitioners
and Sri Gade Venkateswara Rao, learned counsel for the respondent.
13. Learned counsel for the petitioners contended that the
provisions relating to filing of a Written Statement are made
applicable by order VII Rule 6-G to the filing of the Written
Statement in answer to a counter claim by a plaintiff also; that as per
proviso to Order VIII Rule 1, Written Statement had to be filed within
30 days unless the defendant is allowed to file the same on such other
day as may be specified by the Court for reasons to be recorded in
writing, but even such period shall not be later than 90 days from the
date of service of summons; and merely because at the time when the
respondent/plaintiff filed his Written Statement in answer to the
counter claim of the petitioners, no objection had been raised
specifically by the petitioners, the duty of the Court to record reasons
while receiving it when it is filed with a delay of nine years cannot be
abdicated by it; and the Court cannot absolve itself of such
responsibility particularly when such inordinate delay is there on the
part of respondent/plaintiff to file the Written Statement in answer to
the counter claim of the petitioners. He pointed out that even the
Court below had recorded a finding that the respondent/plaintiffs
counsel had received copies of the Written Statement and the plea of
the respondent/plaintiff that she was not supplied with copy of the
Written Statement-cum-counter claim is incorrect; and in such
circumstances, the exercise of jurisdiction by the Court below in
refusing to entertain the objection raised by the petitioners is
unsustainable. He contended that the Court below had failed to
exercise jurisdiction vested in it by law by refusing to reject the
Written Statement filed by respondent in answer to the counter claim
made by the petitioners.
14. Learned counsel for the respondent however refuted the
said contentions. He stated that since no objection had been raised at
the time of filing of the Written Statement by the respondent on
18-11-2016 to the counter claim made by the petitioners, the
petitioners are deemed to have waived any such objection and the
order passed by the Court below is correct.
15. I have noted the contentions of the parties.
16. From the facts narrated above, it is clear that the
petitioners, who are defendants in the suit, had filed Written
Statement-cum-counter claim on 05-07-2008. Nine years later, on
18-11-2016, without seeking permission of the Court, the
respondent/plaintiff filed his Written Statement in answer to the said
counter claim.
17. The question is whether the court below had rightly
exercised its discretion in dismissing petitioners application to reject
the said Written Statement filed by the respondent to the counter claim
by the petitioners or not?
18. Order VIII Rule 6 (A) permits a defendant, in addition to
his right of pleading a set-off under Rule 6, to raise by way of counter
claim against the claim of the plaintiff, any right or claim in respect of
cause of action accruing to the him against the plaintiff either or after
the filing of the suit. However, he is required to file the counter claim
before he delivered his defence or before the time limited for
delivering his defence has expired.
19. Order VIII Rule 6-G makes applicable the rules relating
to a Written Statement by a defendant to apply to a Written Statement
filed by the plaintiff in answer to a counter claim.
20. Therefore Order VIII Rule 1 CPC is applicable to the
respondent/plaintiff. It states:
R.1. Written Statement:- The defendant shall, within
thirty days from the date of service of summons onlhim, present
a Written Statement of his defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty days, he shall
be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing,
but which shall not be later than ninety days from the date of
service of summons.
21. This provision has been interrupted by the Supreme
Court in Salem Advocate Bar Association, T.N. Vs. Union of
India . The Supreme Court held that though a Written Statement had
to be filed within 30 days as per Act 46 of 1999, the rigour of this
provision was reduced by Amendment Act 22 of 2002 which enabled
the Court to extend the time for filing Written Statement on recording
sufficient reasons therefor, but the extension can be maximum of 90
days. It also considered the question whether the Court has any power
or jurisdiction to extend the period beyond 90 days. It held that
though maximum period of 90 days to file the Written Statement had
been provided, consequences on failure to file Written Statement
within the said period had not been provided for in Order VII Rule 1
CPC; that the provision in Order VIII Rule 1 providing that the higher
limit of 90 days to file Written Statement is directory, but however
added that the order extending time to file Written Statement cannot
be made in a routine manner, and time can be extended only in
exceptionally hard cases. It held that while extending time, it has to
be borne in mind that the Legislature has fixed the time limit of 90
days and the discretion of the Court to extend the time shall not be
frequently and routinely exercised so as to nullify the time fixed under
Order VIII Rule 1 CPC.
22. In the instant case, admittedly the Written Statement was
filed by the respondent/plaintiff in answer to the counter claim of the
petitioners on 18-11-2016, nine years after such counter claim had
been filed by the petitioners on 05-07-2018.
23. As per Order VIII Rule 1 CPC, such Written Statement
ought to have been filed by the respondent within 30 days from the
date of receipt of the Written Statement-cum- counter claim of the
petitioners.
24. As per the proviso to Rule 1 of Order VIII, the Court
normally had power to extend the time for filing such Written
Statement by the respondent to the counter claim made by the
petitioners only for a period not later than 90 days, that too for reasons
to be recorded in writing.
25. For such reasons to be recorded in writing, the
respondent/plaintiff should have filed an application seeking
permission of the Court to file such Written Statement in answer to
the counter claim of the petitioners beyond the period of 30 days.
26. Admittedly he did not do so. The fact that the respondent
did not do so and the petitioners did not object at the time of filing
such Written Statement in answer to the counter claim, in my
considered opinion, cannot absolve the Court below of its duty to
record reasons in writing why it received the Written Statement filed
by the respondent in answer to the counter claim of the petitioners
beyond the period of 30 days. Admittedly no such reasons have been
recorded by the Court below.
27. Also the only reason assigned by the respondent is that
he could not file the Written Statement in answer to the counter claim
of the petitioners within time was that copy of the Written Statement-
cum- counter claim had not been supplied to his counsel. Even the
Court below found this excuse to be incorrect on verifying the record.
28. Once this is so, no indulgence could have been shown by
the Court below to allow respondents Written Statement in answer to
the counter claim made by the petitioners and it ought to have rejected
the same by allowing the application filed by the petitioners. But it
had allowed the Written Statement filed by the respondent in answer
to the counter claim to remain on record, as a matter of routine, which
the Supreme Court in the above case said cannot be done.
29. The Supreme Court had permitted extension of time
beyond 90 days only in exceptionally hard cases. In the present case,
the negligence of the respondent or his counsel in reading the Written
Statement-cum- counter claim of petitioners and consequently failing
to file his response cannot bring the case of the respondent in the
category of an exceptionally hard case. By such erroneous exercise of
jurisdiction, the Court below had practically nullified the period fixed
by Order VIII Rule 1 CPC.
30. Therefore, the Civil Revision Petition is allowed; order
dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the
Principal Junior Civil Judge, Punganur, is set aside; and the said I.A.
is allowed and the Written Statement filed by the respondent/plaintiff
in answer to the counter claim of the petitioners is struck off the
record and shall not be considered for any purpose. No costs.
31. As a sequel, the miscellaneous petitions, if any pending,
shall stand closed.
_________________________________
JUSTICE M.S.RAMACHANDRA RAO
Date: 23-04-2018
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