--1-- C.M.P. No. 575 of 2023 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 575 of 2023 ---- Cedrick Maxwell Francis, son of Late Victor Francis, aged about 66 years, Resident of 53, A-Road, Airbase Colony PO and PS – Kadma, Jamshedpur, District – East Singhbhum, Jharkhand .... Petitioner -- Versus -- 1. Verna D’Cruz, wife of Kenneth D’Cruz, Resident of C/o Sapna Francis, 53, A-Road, Airbase Colony, PO and PS – Kadma, Jamshedpur, District – East Singhbhum, Jharkhand 2. (a) Mrs. Natasha Mary, Liberatus, wife of Mr. Chandrajeet Ashok Kanchan, daughter of Late P.P Liberatus and Late Lerris Liberatus, Resident of flat No.401B, Namrata Magic, near Yashada Chowk, Pimple Saudnagar, PO and PS – Pune, District – Pune (b) Mrs. Sophia Liberatus, wife of Subrato Ghosh, daughter of Late P.A. Liberatus and Late Lems Liberatus, resident of Suraj 403, New Vasundra CHS, Opp. Thakur Mall, Thakur Village, Kandiwali East, PO and PS – Kandiwali, District – Mumbai (c) Mrs. Venessa Liberatus, wife of Mr. Monmay Ghosh, daughter of Late P.A. Liberatus and Late Ierris Liberatus, Resident of D604, Ashok Nagar Apartment, Handewali Road, Hadapsar, PO and PS – Pune, District - Pune 3. Sapna Francis, wife of Late Edmond Agnelo Francis, Resident of 53, A-Road, Airbase Colony, PO and PS – Kadma, Jamshedpur, District – East Singhbum, Jharkhand .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner :- Mr. Prashant Pallav, Advocate :- Ms. Shivani Jaluka, Advocate For the O.P. No.1 :- Mr. Abhijit Kr. Singh, Advocate :- Mr. Amit Kumar, Advocate ---- 12/27.01.2025 Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.1. --2-- C.M.P. No. 575 of 2023 2. In the order dated 10.01.2025, it is recorded that the O.P. No.3 service has been effected and the legal heirs of deceased O.P. No.2 has been served through counsel who is appearing in the suit and the said report is at Flag-A. On that day, the matter was adjourned to provide them one more opportunity to appear and in spite of that they have not appeared, as such this petition is being heard on merit. 3. This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 06.02.2023 passed by learned Civil Judge (Sr. Division-II), Jamshedpur in Title Suit No.89 of 2016 whereby the learned Court has been pleased to treat the written statement and counter claim filed by the opposite party No.1 and admitted the same at the stage of final argument in Title Suit No.89 of 2016. Further prayer is made for quashing of the order dated 01.02.2023 passed in the said suit whereby the sheristadar report was called by the learned Court after lapse of almost six years from the date of filing of the same. 4. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that the petitioner is a plaintiff in Title Suit No.89 of 2016 pending before the learned Civil Judge (Sr. Division-II), Jamshedpur. He submits that the defendant No.1 is the contesting defendant and defendant Nos.2 and 3 are the proforma defendants. He further submits that the defendant No.2 has left for her heavenly abode and subsequently she has been substituted by the legal heirs --3-- C.M.P. No. 575 of 2023 successor. He further submits that a family amicable arrangement deed was entered into by the legal heirs of Late Gwendoline Francis and Late Victor Francis on 1st of September, 2012 at Jamshedpur. By way of referring to the said arrangement contained in Annexure-1 particularly Clause 10 he submits that it was mutually agreed that the first party C.M. Francis will arrange to make suitable amount arranged according to his convenience for purchase of one flat each for the enjoyment of third and fourth party and third and fourth party will not give any pressure on the first party or his family members for any unreasonable liking for choice in the matter of acquiring the flat for them, subject to a maximum amount of Rs.15,00,000/- only per flat within a period of five years, or Rs.15,00,000/- only in cash to be paid in installments to third and fourth party within a span of five years i.e. option of cash Rs.15,00,000/- (Rupees Fifteen Lakhs) only for a flat worth Rs.15,00,000/- (Rupees Fifteen Lakhs) only in the town of Jamshedpur and amount to be taken from the income of the school after all expenditures. He submits that since the said Clause 10 was not complied with, the title suit was instituted in the form of specific performance of family arrangement dated 01st September, 2012. He submits that on the notices, the defendants have appeared and filed their written statement. He submits that the suit was instituted on 24.06.2016 and on 29.11.2016 the written statement was filed by the defendants and further on 04.08.2022 the plaintiff’s evidence --4-- C.M.P. No. 575 of 2023 was closed and on 05.12.2022 defendant’s evidence was closed and on 13.12.2022 argument was commenced. 5. He submits that on 20th January, 2023 a petition was filed saying that the averment is there of counterclaim and written statement is there that may kindly be allowed and the learned Court has been pleased to allow the same and treated the same as counter claim. He submits that after such a long period the said petition was allowed which is not in accordance with law. He draws the attention of the Court to Order 8 Rule 6A and submits that in light of the provisions made therein, the counterclaim is also required to be in the form of the plaint itself. The procedure further prescribed that in the counterclaim the separate numbers are being provided and the procedure of suit is being followed and for that separate court fee is further required. He then submits that the procedure has not been followed and learned Court has erroneously allowed the said petition at a belated stage at the time of final argument. He submits that will amount to de novo trial. To buttress this argument, he relied in the judgment of Hon’ble Supreme Court in the case of Ashok Kumar Kalra versus Wing Cdr. Surendra Agnihotri and Others reported in (2020) 2 SCC 394 wherein at paragraph No.18, it has been held as under :- 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see --5-- C.M.P. No. 575 of 2023 that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter claim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC. 6. Relying on the above judgment, he submits that the counter claim after framing of the issue at the time of final argument cannot be allowed and the entire object of counterclaim is illustrated by the impugned order. On this ground, he submits that the impugned order may kindly be set aside. 7. Mr. Abhijit Kumar Singh, learned counsel appearing for the opposite parties submits that the counter claim is already there and for family amicable arrangement the said petition was filed and the learned Court has been pleased to allow the same and there is no illegality in the order. He submits that the sheristadar has been directed by the learned Court to assess the court fee and the right --6-- C.M.P. No. 575 of 2023 of the petitioner is kept preserve to agitate the counter claim in the proceedings and in view of that this petition may kindly be dismissed. He submits that the relief of counter claim is already made in the said counterclaim and to avoid the multiplicity of litigation it has been rightly done. 8. It is an admitted position that the suit was instituted on 24.06.2016 and the defendants appeared and filed written statement on 29.11.2016 and plaintiff’s evidence were closed on 04.08.2022 and on 05.12.2022 the defendant’s witnesses have been closed. On 13.12.2022 the argument was commenced and the petition was filed on 20.01.2023 to treat the statement made in the written statement as counter claim. 9. Order 8 Rule 6-A of the CPC which pertains to counterclaim, reads as under :- Order 8 Rule 6-A : “6-A. Counterclaim by Defendant - (1) A defendant in a suit may, in addition to his right of pleading a setoff under rule 6, set up, by way of counterclaim 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 defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) Such counterclaim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. --7-- C.M.P. No. 575 of 2023 (4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.” 10. In view of the above, as per Order 8 Rule 6 of the CPC, the defendant can claim set-off of any ascertained sum of money legally recoverable by him from the plaintiff, against the plaintiff’s demand, in a suit for recovery of money. Whereas, Rule 6-A deals with counterclaim by the defendant, according to which a defendant in a suit may, in addition to his right of pleading a set-off under Order 8 Rule 6, set up, by way of counterclaim 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 filing of the suit but before the defendant has delivered his defence or before the time prescribed for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. 11. The purpose of counter claim in the light of the said provision has been answered by Hon’ble Supreme Court in paragraph No.18 as has been referred by learned counsel appearing for the petitioner which is quoted here-in-above in the case of Ashok Kumar Kalra (supra). 12. Thus, Order 8 Rule 6-A of CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation --8-- C.M.P. No. 575 of 2023 period prescribed has not elapsed. The Court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors such as period of delay, prescribed limitation period for the cause of action pleaded, reason for the delay, defendant’s assertion of his right, similarity of cause of action between the main suit and the counterclaim, cost of fresh litigation, injustice and abuse of process, prejudice to the opposite party, and facts and circumstances of each case and in any case, not after framing of the issues. 13. Coming to the facts of the present case, it is an admitted position that the suit was instituted in the year 2016 and how the suit has proceeded which has been noted here-in-above. The argument was already commenced on 13.12.2022 and the said petition was filed on 20th January, 2023 which clearly suggests that the spirit of Order 8 Rule 6-A was not followed. 14. The Court has looked into the written statement which was annexed with the C.M.P petition and finds that only in 2-3 paragraphs claim is made which is further not in accordance with procedure of the counterclaim. The counterclaim has to be filed in the form of plaint itself and the Court has further looked into the impugned orders and finds that the learned Court has also not given any cogent reason of allowing the said petition and the only reason --9-- C.M.P. No. 575 of 2023 is said to be that by way of mistake it has not been placed that is not a cogent reason. All these aspect, which has been discussed here-in-above, has not been followed by the learned Court. 15. Admittedly, when everything was closed and the matter reached up to the argument stage all the grounds taken by the plaintiff was already there and thereafter after placing the said petition certainly cause prejudice to the case of the petitioner which amounts to defeat the cause of justice and is detrimental to the principle of speedy justice. 16. For the above facts, reasons and analysis the Court finds that the impugned orders are not sustainable in the eye of law, as such the impugned orders dated 01.02.2023 as well as 06.02.2023 passed by learned Civil Judge (Sr. Division-II), Jamshedpur in Title Suit No.89 of 2016 are hereby quashed. 17. This petition is allowed in above terms. 18. The learned Court will proceed to decide the pending suit in accordance with law. (Sanjay Kumar Dwivedi, J.) Sangam/ A.F.R.