Page No.# 1/10 GAHC010253102018 2025:GAU-AS:5163 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/178/2018 DINARAM SAIKIA AND 9 ORS. S/O- LATE PUNIRAM SAIKIA, R/O- NAMTIAL PATHAR, P.O- NAMTIAL PATHAR, P.S- SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640 2: DULAN SAIKIA S/O- SRI DINARAM SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 3: UTPAL SAIKIA S/O- DINARAM SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 4: BOGI SAIKIA S/O- DINARAM SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 5: NIRU SAIKIA S/O- DINARAM SAIKIA R/O- NAMTIAL PATHAR Page No.# 2/10 P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 6: PAPU SAIKIA S/O- DINARAM SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 7: MISONG R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 8: BONTI SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 9: BULI SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 785640 10: KOLI SAIKIA R/O- NAMTIAL PATHAR P.O- NAMTIAL PATHAR P.S- SIVASAGAR DIST- SIVASAGAR ASSAM PIN- 78564 VERSUS Page No.# 3/10 SIVASAGAR MISING CULTURAL ORGANIZATION REP. BY ITS PRESIDENT SRI MADAN MILI, R/O- KANKAN NAGAR, P.S- SIVASAGAR, DIST- SIVASAGAR, ASSAM, PIN- 785640 Advocate for the Petitioner : MR. P J SAIKIA, MS R GOGOI,MS. D DUTTA Advocate for the Respondent : MR. T J MAHANTA, MR. A BORUA,MS. P BHATTACHARYA Date of hearing : 07.04.2025. Date of Judgment : 29.04.2025 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG :: Judgment and Order :: [CAV] Heard Mr. P. J. Saikia, learned counsel for the petitioners. I have also heard Mr. T. Y. Mahanta, learned Senior counsel for the respondent. 2. By filing this application under Sections 115 and 151 of the Code of Civil Procedure, 1908, read with Article 227 of the Constitution of India, the petitioners seek revision of the order dated 05.09.2018, passed by the Munsiff No.1, Sibsagar, in TS No.62/2013. The order rejected the Miscellaneous (J) No.57/15 filed by the petitioners/defendants, which prayed for acceptance of the counter-claim in the said suit on the grounds of delay and prejudice to the plaintiff. 3. The revision petition arises because the plaintiff/respondent instituted the suit on 18.11.2013, claiming ownership over land measuring 15 lechas covered by Dag No. 61 of PP No. 35 of Namtial Pathar. The plaintiff stated that this land was purchased in 2008 via sale deed No. 1588, and their name was Page No.# 4/10 mutated in the land records on 26.11.2013, by order of the Circle Officer, Sivasagar. Additionally, the plaintiff claimed ownership over 9 lechas of land covered by Dag No. 61 of PP No. 35, purchased in 1996 through sale deed No. 151, with their name mutated on 25.05.2005. 4. After purchasing the land, the plaintiff developed it with RCC construction, including a concrete boundary wall, except for a narrow northern side. On the northern boundary, the plaintiff constructed a boundary wall about 6 feet high, with permission obtained from authorities on 25.06.2013. An iron gate was installed on this northern side, leading to the embankment, to facilitate garbage disposal over the adjoining government land. There was also a kacha road on the southern side, about 8 feet wide and 135 feet long, leading to NH 37. This road was constructed by local residents, leaving about 4 feet of land on each side from their homesteads, and was used solely for ingress and egress by the respondent’s society members to reach the Murung Ghar. Prior to this, no such road existed. 5. The petitioners/defendants reside approximately 200 feet west of the Murung Ghar, beyond the embankment, and have their own road leading to NH 37 from Dorika Embankment. They attempted to use the private road through a small gate in the northern wall without authority, which the plaintiff had kept closed. On 25.10.2013, the defendants, armed with lathis and iron rods, forcibly entered the Murung Ghar, damaged property, and threatened to continue using the land for ingress and egress. This prevented the plaintiff from performing rituals and daily prayers at the Namghar and Murung Ghar. 6. Under the circumstance, the plaintiff filed the suit seeking declaration of rights, title, possession, and a permanent injunction, asserting their lawful possession and rights over the land. The cause of action arose from the date of Page No.# 5/10 purchase, development, mutation, and the defendants’ forcible entry on 25.10.2013. 7. The defendants filed their joint written statement on 10.04.2014. Subsequently, on 19.11.2015, the defendants filed a petition to set up a counter-claim, seeking declarations of easementary rights over the disputed road, asserting that the road was a public road, and praying relief including mandatory injunction and compensation. 8. The trial court, after considering the pleadings and record, rejected the counter-claim on the grounds of unexplained delay, which would cause prejudice to the plaintiff, and that allowing the counter-claim at such a late stage would be unjust. 9. The impugned order states that the cause of action for the counter- claim arose on 25.10.2013, prior to the filing of the suit, and that the counter- claim was filed more than a year later, without explanation. The trial court emphasized that under the provision of Order VIII, Rule 6A, a counter-claim must be filed along with the written statement or within the prescribed time, and that delay without satisfactory explanation is a valid reason for rejection. 10. The order further notes that the cause of action for the counter-claim existed before the filing of the suit and the written statement, and that the defendant had the opportunity to include such a claim at that time. Since the counter-claim was filed belatedly, after the expiry of the period for filing the written statement, and after a significant delay, the court exercised its discretion to reject it, citing prejudice to the plaintiff and the need to prevent abuse of process. 11. The impugned order is extracted bellow for convenience: Page No.# 6/10 “05/09/2018 Both the parties are duly represented. Perused the case record. Today's date was fixed for order on petition no. 1929/15. Vide petition no. 1929/15, the defendant has prayed to accept the counter claim on the ground shown in the petition. Before entering into the detailed discussion in regard to the said petition, it is pertinent to go through the relevant provisions of law which would be needed for effective disposal of the said petition. Order VIII Rule 6A CPC reads as, "(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 defence 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." A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any doubt, that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a written statement. Even, the Hon'ble Supreme Court of India in Bollepanda P. Poonacha & Anr vs. K.M. Madapa (2008), 13 SCC 179, observed as under: "A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence." Hence, from the perusal of the above provision of the code as well as the above case law, following points comes forward:- Firstly, counter-claim is in addition to the written statement of the defendant, Secondly, the cause of action must arise before or after filing of suit but before written statement. From perusal of the case record as well as upon going through the said petition, it appears that the suit was instituted by the plaintiff on 18.11.2013 and the defendant filed their defence i.e. their written statement on 10.04.2014 and further the instant petition for filing counter- claim on 19.11.2015 and the defendant/petitioner stated in the instant petition that the cause of action arose on 25.10.2013. Hence, it is clear that the cause of action arose prior to the filing of the suit. That clearly concludes that the cause of action which is shown in the counter claim was subsisting at the time of filing the written statement by the defendant. Page No.# 7/10 Hon'ble Supreme Court of India in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 at page 366, stated that," These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter-claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither can the written statement be filed as of right nor a counter-claim can be allowed to be raised, for the counter- claim under Rule 6-A must find its place in the written statement. The court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counterclaim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time." Hence, after having a reading of the above cited judgment of the apex court, it gives an idea that the counter-claim must find its place in the written statement and once the written statement is filed or time to file such expires, no counter-claim be normally allowed. In the instant case, the defendant in their counter-claim has tried to take a plea of easementary right, thus showing the cause of action on 25.10.2013. Thus, the defendant was at his liberty to take such a plea as their counter-claim at the time of filing their written statement as it is an established principle that counterclaim is an addition to the written statement and must finds its place with the written statement. Hence, from the above discussion it appears that the cause of action did not arose after the filing of the suit but arose before the filing of the suit. Upon going through the above case law an idea can be drawn that as the cause of action was subsisting when the plaintiff instituted the suit and also when the defendant filed the written statement, hence, the defendant ought to have filed the counter claim along with the written statement. The defendant failed to show any reason as to why the counter claim was not filed along with the written statement. The essential ingredient for filing counter claim is that it must be in addition to the written statement and must find its place with the written statement. In this case, the defendant did not file his counter claim along with the written statement even though the cause of action arose prior to filing of his written statement. Instead, the defendant waited for long without any reason to file the counter claim in belated stage. Upon perusal of the case record it appears that this is an old pending suit instituted in the year 2013 and is still resting at the stage of framing of Page No.# 8/10 issue. The written statement was filed by the defendant on 10.04.2014 and petition for allowing them to file counter-claim on 19.11.2015. Thus, it also appears that there was a delay on the part of the defendant without any reason. Hence, it appears that allowing this counter-claim at this belated stage will cause prejudice to the plaintiff. Hence, from the above discussion, the decision which is reached is that the counterclaim filed by the defendant could not be accepted and thus the petition no. 1929/15 is rejected. The petition no. 1929/15 is finally decided and disposed of accordingly. This Misc (j) case is disposed of on contest without cost.” 12. Aggrieved by this order, the appellant filed this civil revision petition, arguing that the cause of action for the counter-claim arose before the suit was filed, and that the counter-claim was properly set up in the written statement. 13. The petitioner contends that the trial court erred in holding that counter-claims must be filed simultaneously with the written statement and that late filing is unjustified. The petitioners emphasized that the cause of action for the easementary rights was clearly indicated at para 7 of the written statement, and therefore, the counter-claim was validly filed. It is further contended that coming to the wrong findings by the learned trial courts amounts to non- exercise of powers by the court which requires to be set at right by exercising powers by this court under section 115 of Civil procedure Code. 14. That the counter claim is statutory right under Order, 8 Rule 6A CPC has been denied by the learned Trial Court. And the Order 8 Rule 6A (1) CPC does not, bar filing of counter claim by the defendant after he had filed the written statement provided the cause of action had accrued to the defendants before the defendant had filed his written statement or before the time limited for delivering his defence has expired. 15. The respondent, on the other hand, asserts that the counter-claim was filed after an inordinate delay, without satisfactory explanation, and that Page No.# 9/10 allowing it at this stage would cause prejudice and inconvenience. The respondent maintains that the trial court rightly exercised its discretion to reject the belated counter-claim to uphold procedural fairness and prevent abuse of process. 16. After hearing the parties and considering the record, including the pleadings, the application, counter-claim, and the impugned order, the issues for consideration is- whether the trial court was justified in rejecting the defendant’s counter-claim on the ground of delay and prejudice to the plaintiff. 17. It is well established that courts have inherent power to control their proceedings and prevent abuse of process, especially when claims are filed after undue delay, causing prejudice to the opposing party. Counter-claims should generally be filed within a reasonable time, and unexplained delay can be a valid ground for rejection. The court’s discretion must be exercised judiciously, considering the facts and circumstances of each case. 18. In this case, the counter-claim was filed more than a year after the written statement, with no explanation for the delay. The cause of action for the easementary rights was stated to have arisen before the suit was filed, and the defendant had the opportunity to include this claim at that time. The delay in filing the counter-claim was unexplained and unreasonable, and the trial court rightly found that allowing it at this stage would prejudice the plaintiff and prolong the proceedings. 19. Furthermore, the record shows that the defendants/petitioners did not seek leave in their written statement for filing the counter-claim at the later stage. 20. The defendant can raise counter-claim against the plaintiff either before Page No.# 10/10 or after filing the suit, but before the defendant has delivered his defence. The phrase “delivering defence” refers to presentation of written statement. In this case, the suit was filed on 18.11.2013, and the defendant had already presented their written statement on 10.4.2014. However, it was found that after the gap of more than one and a half years, the defendants/petitioners filed a petition to submit counter-claim along with the counter-claim itself on 19.11.2015, at a belated stage when the case was set for framing of issues. 21. This clearly indicates that the defendants/petitioners were attempting to prolong the trial. Therefore, the application for counter-claim filed by the respondents was rightly rejected in exercise of the discretion, as it was filed at an unreasonably late stage. The trial court’s order was based on sound exercise of judicial discretion, considering the principle of procedure, fairness, and the interest of justice. The order was-well reasoned, with no apparent error in law or jurisdiction. Therefore, no interference is warranted. Accordingly, this revision petition is dismissed as being devoid of merit. 22. However, the defendants/petitioners are permitted to file a separate suit if they wish to pursue their claims independently. 23. With this, the petition is disposed of. JUDGE Comparing Assistant