Thursday, 31 January 2013

counter claim by defendant in civil suit


 Counter-claim by defendant

(1) A defendant in a suit may, in addition to his right of pleading 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 defense or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(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.

IN HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEUDRE
Judgment pronounced on: 10.04.2012
I.A. No.5509/2011 in Counter Claim No.41/2009 in
CS (OS) No.576/2009
SKYHAWK EDUCATIONAL AND WELFARE SOCIETY 
(REGD.) & ANR     ..... Plaintiffs
Through Mr Harish Malhotra, Sr. Adv. 
       with Ms. Nandni Sahni, Adv.
Versus
DIRECTORATE OF EDUCATION & ORS ..... Defendants 
Through Ms. Purnima Maheshwari, Adv. for defendants
No.1, 2 & 4. Mr. Ved Prakash Sharma, Adv. with
Ms. Amrit Kaur Oberoi, Adv. for applicant/D-3.
       Ms. Sujata Kashyap, Adv. for D-5.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the application being I.A.
No.5509/2011 filed by the counter-claimant/defendant No.3
under   Order VI, Rule 17 and Order 1, Rule 10 read with
Section 151 CPC.
2. The brief facts are that the plaintiffs have filed the                          
above-mentioned suit for declaration, permanent and
mandatory injunction against the present defendant
No.3/counter-claimant and others, on the premise that
plaintiff No.1 is a Society registered under the Societies
Registration   Act, 1860 and the said Society by virtue of a resolution dated 20.04.2008 expelled the defendant
No.3/counter-claimant from the its membership.
3. Defendant No.3/counter-claimant has filed his written
statement as well as the counter-claim thereby
controverting the claim made by the plaintiffs.  Defendant
No.3 has also questioned the true status and position of
plaintiff No.1 as a society to run as an educational
institution.  
4. The issues were framed on 18.05.2010 in the main suit. 
The plaintiffs were directed to adduce evidence in the first
instance and ten weeks’ time was granted to the plaintiffs to
produce the evidence by way of affidavit(s).  An additional
issue was also framed on 22.09.2010 in view of the
application filed by defendant No.3, being I.A.
No.8077/2010.  On the said date, three issues in the
counter-claim No.41/2009 were also framed.  The plaintiffs
filed the list of witnesses and also the evidence of PW.1
along with 10 other affidavits of the witnesses.
5. In the meanwhile, the defendant No.3/counter-claimant
has filed the present application for amendment of  his
counter-claim.   It is stated in the application that after the
discovery of some documents, the said amendment has
been sought, as the applicant did not know about the
custody of these documents.  
6. It is contended by the defendant No.3/applicant that the
applicant was not aware of the custody of three documents
which are now sought to be placed on record until February,
2011 which are now sought to be placed on record.   The
details of discovery of these documents are given in para-6
of the application which is reproduced here below:
“6. That defendant No.3 had discovered documentary
evidence i.e.  writings  dated 21.08.2004, 23.08.2007,
proposed settlement dated 01.10.2007 between Shri Balraj Singh Lochhab and Shri Yashpal Rana, Release Deed  dated
25.02.2008 by Shri Surender Singh in favour of  Shri Balwan
Singh, Release Deed dated 26.02.2008 and Receipt dated
26.02.2008 by Shri Anand Singh alias Anand Kumar in
favour of Shri Bhom Singh which was in the custody  and
possession of Shri AnandSingh alias Anand Kumar Dahiya
and have been handed over to defendant No.3 only on 5th
February 2011 as already explained. 
     A perusal of these documents coupled with proposed
settlement dated 11th December, 2007 (already on the
court record) leaves no doubt that the real intention of the
parties was to have a partnership amongst themselves and
the affairs of the partnership were being shown to be run by
the society to obviate the de-recognizition and de-affiliation
of the school by the Directorate of Education, Central Board
of Secondary Education. 
     The defendant No.3 is also filing an application for
amendment of his counter-claim.” 
     
7. It is further stated that in order to adjudicate the
controversy between the parties, the proposed defendants
No.6 to 10 are necessary parties to be impleaded and at the
same time, paragraphs-7(iv)A to 7(iv)F are necessary to be
added in the preliminary objections of the counter-claim
after paragraph-7(iv) thereof, the details of which are
mentioned in paragraph-8 of the application.
8. Mr. Ved Prakash Sharma, learned counsel appearing on
behalf of defendant No.3/counter-claimant states that the
said amendments are clarificatory in nature which explain
the relationship between the parties which are reflected in
the document dated 11.12.2007 and the same would also go
into the route of the controversy between the parties.  The
defendant No.3 earlier could not take the said proposed
pleas for want of sufficient evidence which has been
discovered and said documents came to the knowledge of
defendant No.3/counter-claimant only on 05.02.2011.  In
order to avoid the multiplicity of litigations, the notices dated 18.02.2011 under Section 80 CPC were issued to the
Government of India, Directorate of Education, CBSE and
Registrar of Societies.  It is also prayed that proposed
defendants No.6 to 10 be impleaded in the suit.
9. The application of defendant No.3/counter-claimant is
strongly opposed by the learned counsel for the plaintiffs
who has argued that the trial in the matter has already been
commenced as the issues in the matter were framed on
18.05.2010.   An additional issue in the suit and the issues
in the counter claim were framed on 22.09.2010.  The
plaintiffs have already filed 10 affidavits.  Thus, under
proviso of Order VI, Rule 17 CPC, the amendment
application is not maintainable as no due diligence as
provided in the proviso has been shown by the defendant
No.3.  The said documents were available with defendant
No.3/counter-claimant.  The learned counsel has referred
the following judgments in support of his submissions:-
(i) Prominent Hotels Ltd. vs. New Delhi Municipal Council,
reported in 175 (2010) DLT 66. 
(ii) Gastech Process Engineering (India) Pvt. Ltd. vs.
Saipem, reported in 159(2009) DLT 756.
(iii) D.K. Attery (Dr.) vs. Kanwal Singh Mehra, reported in
159(2009) DLT 764.
(iv) Vidyabai and Others vs. Padmalatha and Another,
reported in (2009) 2 Supreme Court Cases 409.
(v) Rohit Singh and Others vs. State of Bihar (now State of
Jharkhand) and others, reported in (2006) 12 Supreme
Court Cases 734.
10. Mr. Sharma, learned counsel appearing on behalf of the
applicant/defendant No.3 has argued that the contentions of
the learned counsel for the plaintiffs have no force.   He has
also argued that the trial has not commenced in the
counter-claim which has to be treated as a normal suit
under the provisions of Order VIII, Rule 6A(4) CPC  which
provides that the counter-claim shall be treated as a plaint
and governed by the rules applicable to plaints. He further argued that while framing the additional issue in the
counter-claim on 22.09.2010, there were no directions given
to the defendant No.3/counter-claimant to file any  list of
witnesses or evidence by way of affidavit.  The learned
counsel states that since the list of witnesses and affidavit(s)
have not been filed by the defendant No.3, therefore, the
trial has not commenced in the counter-claim.  In support of
his submissions, Mr. Sharma has referred the decision of this
Court given in the case of Rajesh Sharma vs. Krishan Pal &
Anr., reported in 183(2011) DLT 791, it has been held that
the actual commencement takes place only when either
witness appears in Court for giving evidence, or affidavits of
witnesses are filed by way of their examination-in-chief.
11. After hearing the rival submissions of the learned
counsels for both the parties, it is not in dispute that the
additional issue in the above case was framed on
22.09.2010 and the issues in the counter-claim were also
framed on the same date.  It appears from the record that
there was no direction given to the defendant No.3/counterclaimant to file the list of witnesses or evidence by way of
affidavit.  Under the provisions of Order VIII, Rule 6A (4)
CPC, the counter-claim has to be treated as a plaint and
governed by the rules applicable to plaints.  No doubt, the
plaintiffs have filed the evidence of PW-1 and other 10
affidavits.  As far as the defendant No.3/counter-claimant is
concerned, his counter-claim has to be treated as an
independent suit.    It is also a matter of fact that the
defendant No.3/counter-claimant has not filed the list of
witnesses or evidence by way of affidavit.  Therefore, it
appears to the Court that the proviso as referred to by the
learned counsel for the plaintiffs for rejection of the present
application has no applicability under the said
circumstances.  As regards the objections of the plaintiff on
merit of the proposed amendments are concerned, the same
cannot be considered at the time of deciding the application
for amendment.   12. In para-6 of the application, specific statement has been
made that this documentary evidence which was in the
custody and possession of Sh. Anand Singh  alias Anand
Kumar Dahiya, the same was  handed over to defendant
No.3 only on 5.2.2011. In case the statement of defendant
No.3 is correct, then, there is no impediment to allow the
application even if trial in the matter is commenced.  
13. As far as adding of proposed defendant Nos.6 to 10 is
concerned, I am of the considered view that it is not
necessary to implead these defendants.  However, liberty is
granted to the defendant No.3 to summon these persons as
their witnesses to prove the documents in accordance with
law.  The prayer of the defendant No.3 in this regard is
rejected.  
14. It appears prima-facie that the amendments sought by
the defendant No.3/counter-claimant are bonafide in nature
and the statement made in the proposed parties are based
upon evidence received by the defendant No.3 in the matter
of February, 2011. 
15. In view of the above, the present application filed by the
defendant No.3/counter-claimant is partly allowed as prayed
for.  The amended counter-claim filed along with the
application is taken on record.
16. The application is disposed of.
I.A. No.5510/2011 and I.A. No.2499/2011
17. The application, bearing I.A. No.5510/2011, has been
filed by defendant No.3, under Order VIII, Rule 1A(3) read
with Section 151 CPC with a prayer that he may be allowed
to place on record the original documents as per the list of
documents along with the documents annexed to the
present application on record, in support of his defence as
well as counter-claim. 18. The application, bearing I.A. No.2499/2011, has been
filed by the plaintiffs under Section 151 read with Order VII,
Rule 14(3) CPC, praying that they may be allowed to place
on record Annexure P-1 along with their additional affidavit
and original documents and Sh. Balraj Singh Lohchab,
plaintiff No.2’s evidence be recorded on the basis of the said
additional evidence by way of affidavit and documents also.
19. In view of the order passed in I.A. No.5509/2011, both
the applications are allowed. 
CS (OS) No.576/2009 & Counter Claim No.41/2009
20. Amended written statement/counter claim is taken on
record.  Replication/written statement be filed by  the
plaintiffs within four weeks, replication in counter claim be
filed within four weeks thereafter. Additional documents be
filed within six weeks.  List the matter before Joint Registrar
for admission/denial of documents on 03.09.2012.  
 
Sd./-
      MANMOHAN SINGH, J.
APRIL 10, 2012

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