M. Sasidharan Nambiar, J.
1. Can a counterclaim be allowed to be raised subsequent to the filing of the written statement? Can it be permitted to be raised by way of amendment of the written statement and if so under what circumstances? These are the questions to be decided in this petition.
2. The brief facts of the case necessary for decision in the case are as follows:Kerala Nadvathul Mujahidecn is a registered Society registered under Societies Registration Act. First respondent was its Secretary. The society represented by the then Secretary filed O.S.568/02 before Munsiff Court, Kozhikode seeking a decree for declaration that the resolution taken at the meeting convened on 17.8.02 by first respondent/second defendant is invalid and is not binding on the petitioner society. A decree for permanent prohibitory injunction was also sought. First respondent filed a written statement on 19.2.03 disputing the claim and denying the plaint allegations. Petitioner filed I.A.2858/02 and I.A.2982/02 seeking order of temporary injunction restraining the defendants from using the seal and letter pad and name of the petitioner society from operating the bank account. Learned Munsiff granted an order of temporary injunction. It was challenged before District Court in CMA No. 241/02, 242/02 and 243/02. On 6.1.03 the appeals were disposed holding that the period of the term of office of the General Secretary who represented the petitioner society expired and therefore fresh election has to be conducted. An Advocate Commissioner was appointed for conducting the election. Petitioner challenged that order before this Court in W.P.(C) 32676/03. As per Ext. P3, order of the District Judge was set aside holding that election ordered by the District Court is not proper. It was found that as the suit was filed for a declaration that the resolution taken in the meeting is invalid, the relief granted in the CMA was beyond the prayers. this Court restored the order of Munsiff and also directed the trial court to dispose of the suit expeditiously. Defendants thereafter filed Ext. P4 application under Order VI Rule 17 of Code of Civil Procedure (hereinafter called as the Code) for permission to amend the written statement raising a counter claim to appoint a Commissioner to conduct the elections to the Executive Committee of the Society from among the members of the Sakhas as on 18.8.02. It was opposed by the plaintiff by filing Ext. P5 counter statement. As per Ext. P6 order, learned Munsiff allowed the application making it clear that the counter claim will be deemed to have been instituted only on 12-4-06 date of the said order. It is challenged in this petition filed under Article 227 of the Constitution of India by the plaintiff.
3. The argument of Advocate Sri.K.V.Sohan, learned Counsel appearing for petitioner was that as the defendants had filed written statement on 19.2.03 and Ext. P4 application for amendment of the written statement incorporating a counter claim was filed only on 23.11.05 after a delay of two years and nine months, it is hopelessly barred by the provisions of Order VIII Rule 6A of Code. It was also contended that learned Munsiff should have dismissed Ext. P4 application in view of the direction of this Court on 18.11.05 to dispose of the suit expeditiously and had set aside the directions of the District Judge to appoint a Commissioner to conduct the elections. It was the argument of the learned Counsel that as no leave of the court was sought to raise a counter claim by a separate application, Ext. P4 application should have been dismissed. Reliance was placed on the decision of the Apex Court in Ramesh Chanel Ardawatlya v. Anil Panjwani
and it was argued that defendants having failed to raise a counterclaim in the written statement arc precluded from introducing a counter claim when trial of the suit is to be commenced and defendants should have been directed to file a separate suit. The learned Counsel also argued that even as per the counter claim, the cause of action has arisen after filing of the written statement and therefore counter claim should not have been entertained by the learned Munsiff by allowing the application filed under Order VI Rule 17 of the Code.
4. Advocate Sri.B.G.Bhaskar appearing for respondents relying on the decision in Ramesh Chand Ardawatiya v. Anil Panjwani argued that a counter claim in a civil suit could be raised under any of the three modes of pleading as declared by the Apex Court and therefore a counter claim could definitely be raised even after filing of the original written statement, either by filing a subsequent pleading as provided under Order VIII Rule 9 or by amending the written statement as provided under Order VI Rule 17. It was also argued that so long as the counter claim is based on a cause of action which accrued to the defendant before filing of the written statement, defendants cannot be disallowed to raise the counter claim by either filing a subsequent statement as provided under Rule 9 of Order VIII or by amending the written statement as provided under VI Rule 17. It was also argued that learned Munsiff has exercised the discretion vested in him by permitting the written statement to be amended and also to raise counter claim and necessary leave has already been sought and granted and therefore Ext. P6 order cannot be challenged on that ground. Relying on the decision of the Apex Court in Gurdial Singh v. Raj Kumar Aneja and in Baldev Singh v. Manohar Singh 2006 (3) KLT 953 (SC), it was argued that an application for the amendment of the written statement has to be liberally construed and there is no reason to interfere with Ext. P6 order passed by the learned Munsiff in exercise of the extraordinary jurisdiction vested in this Court.
5. A Defendant is conferred with a statutory right to file a counter claim by the provisions of C.P.C Amendment Act 104 of 1976. Rule 6A of Order VIII provides that a defendant in a suit, in addition to his right of pleading a set-off as provided under Rule 6 may 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 he delivered his defence or before the time limited for delivering his defence has expired, whether such a counter claim is raised in the nature of a claim for damages or not. Under Sub-rule (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 the counter claim. Sub-rule (3) enables the plaintiff to file a written statement in answer to the counter claim of the defendant within the period that may be fixed by the Court. Sub-rule (4) mandates that the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints. Rule 6C provides for exclusion of counter claim. Under that Rule where a defendant sets up a counter claim and plaintiff contends that the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit, plaintiff can apply to the court for an order that such counterclaim may be excluded. But there is a restriction that that application has to be filed at any time before issues are settled in relation to the counter claim. Rule 6A therefore enables a defendant to raise a counterclaim against the claim of the plaintiff, provided the right or claim in respect of the cause of action for the same accrued to him against the plaintiff before he filed his written statement or before the time limited for delivering his defence has expired. The cause of action could have accrued before filing of the suit or subsequent to the filing of the suit. But it must be before he delivered his defence or the time limited for delivering his defence has expired.
6. The question whether a defendant is entitled to raise a counter claim subsequent to the filing of the written statement is no more res Integra in view of the pronouncement by the Apex Court in Muhendra Kumar v. State of M.P. and Shanti Rani Das Dewanji v. Dinesh Chandra Day . The court has a discretion to
permit a written statement being filed belatedly. Therefore court has a discretion also to permit a written statement containing a plea in the nature of set off or counter claim belatedly. But such discretion shall be exercised in a reasonable manner keeping in view of all the facts and circumstances of the case including the conduct of the defendant and the fact whether a belated leave of the court will cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time. In Rainesh Chandra Ardawatiya's case (supra) Apex Court laid the principle as follows:
Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up acounter claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counterclaim which in the light of Rule 1 read with Rule 6-A would be acounter claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court, in a written statement already filed. Thirdly, a counter claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under Order VI, Rule 17 of the C.P.C if sought to be introduced by way of amendment, or subject to exercise of discretion conferred on the court under Order VIII, Rule 9 of the C.P.C if sought to be placed on record by way of subsequent pleading.
7. A defendant is entitled to set up a counter claim by incorporating the counter claim in the written statement, as of right though plaintiff has got a right as provided under Rule 6C to apply to the court for excluding the counter claim to be decided in an independent suit. A defendant is also entitled to raise a counter claim by way of amendment of the written statement subject to the leave of the court. He is also entitled to raise a counter claim by way of an additional written statement as provided under Rule 9. But when he is entitled to raise the counter claim in his written statement as of right, he is entitled to raise the counter claim either by way of amendment of written statement under Order VI Rule 17 or by filing a subsequent statement under Order VIII Rule 9 only with the leave of the court.
8. While considering the question whether a defendant is to be granted leave to raise the counter claim by either allowing the written statement to be amended or by filing an additional written statement under Order VIII Rule 9, the court has to bear in mind the purpose of enacting the provision to enable the filing of a counter claim. The Apex Court in Ramesh Chand Ardawatlya'a case (supra) held:
The purpose of the provision enabling filing of a counter claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counterclaim either by way of amendment or by way of subsequent pleading could be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter claim. The framers of the law never intended the pleading by way of counter-claim, being utilised as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter claim not contained in the original written statement may be refused to be taken on record, if the issues have already been framed and the case set down tor trial, and more so when the trial has already commenced.
Relying on the decision of Apex Court in Gurdial Singh v. Rajkumar Aneja , it was argued by Adv.Sri.Sohan that the
petition for amendment is not in confirmity with the principle stated therein. As pointed out by Adv.Sri.Bhaskar, Apex Court was considering the unhealthy practise prevailing in some States where under the guise of amendment a new written statement was being substituted. It was held that an amendment applications shall specifically show what is proposed to be omitted from or altered or substituted in or added to the original pleadings. The application for amendment filed by respondents clearly stated the additions sought by way of amendment.
9. An amendment of plaint and written statement are not necessarily governed by the same principle, though some general principles are applicable to both. Apex Court in Baldev Singh v. Manohar Singh 2006 (3) KLT 953 (SC) reiterated the legal position as follows:
It is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement that of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
10. The settled legal position can thus summarised as follows:
A defendant is entitled to raise the counter claim in the original written statement filed under Rule I of Order VIII as of right. But that does not mean that a defendant is entitled to raise a counter claim in respect of any cause of action accrued to him. He can only raise a counter claim in respect of a cause of action accruing to him 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." So also he can be allowed to raise the counter claim subsequent to the filing of the written statement either by getting his written statement amended as provided under Order VI Rule 17 or by filing a subsequent statement as provided under Order VIII Rule 9. If the consequence of permitting the counter by either of the last two modes would be protracting the trial, complicating the otherwise smooth flow of proceedings or causing delay in the progress of the suit by forcing repetition of the steps already taken by the court, the court would be fully justified in exercising its discretion not to entertain the counter claim sought to be raised. The main purpose for incorporating the provision of entertaining a counter claim is to avoid multiplicity of judicial proceedings so that the valuable time of the court could be saved and inconvenience that may be caused to the parties by contesting multiplicity of proceedings could be avoided. If the result of exercising the discretion in favour of the defendant would result in reopening of the trial or repetition of the steps already taken by recalling the witnesses, the discretion cannot be exercised in favour of the defendant. Ext. P6 order is to be appreciated in the background of this settled legal principles.
11. The argument of Advocate Sri Sohan is that as Ext. P4 application for amendment of the written statement was filed only after the expiry of two years and 9 months from the filing of the written statement, it is hopelessly barred and therefore it should not have been allowed. The objection is based on Rule 6A which mandates that the cause of action should accrue to the defendant atleast before filing of the written statement, or the expiry of the period fixed for delivering his defence. Rule 6-A reads:
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.
12. Relying on the proposed amendment G, it was argued that the cause of action for the counter claim arose on 18.11.05 and the written statement was filed on 19.2.03, and so defendants are not entitled to raise a counter claim whose cause of action accrued in'November 2005 and so it is barred under Rule 6A. Advocate Sri. B.G. Bhaskar pointed out that the reliefs sought for in the counter claim, is for conducting an election of the plaintiff society. It was on the basis that no election was conducted after 1999. It cannot be said that the right of the defendants to seek a decree for conducting the election accrued only after filing of the written statement in 2003 and therefore the cause of action for the counter claim accrued subsequent to the filing of the written statement. learned Counsel also argued that the suit was filed by the plaintiff society only for a declaration that the resolution of the committee convened on 17.8.02 is invalid and not binding on the society. An order of temporary injunction was sought under Order XXXIX Rule I of the Code which was granted by the Munsiff. That was challenged before District Court in CMA. District Court as per the order in CMA directed that an election be conducted. That order was set aside by this Court under Ext. P3 order on 18.11.05. According to respondents at that time there was already a direction by the District Court to conduct an election by deputing a Commissioner and so there was necessity to file a counter claim. It was argued that the cause of action for the counter claim stated under the Amendment G was only to clarify the position why the counter claim was not raised earlier. It was argued that cause of action for the decree sought for in the counter claim did not accrue on 18.11.1995 and what was pleaded is the date when the filing of the counter claim arose in view of the order of this Court varying the order in CMA.
13. The relevant amendment under clause G reads:
The cause of action for the counterclaim arose on 18-11 -2005 when the High Court set aside the order of the District Court directing elections to be conducted by a Commissioner and thereafter within the jurisdiction of this Court in Nagaram amsom where the office of the society is situated.
14. The question is whether the cause of action for the counter claim accrued before the filing of the written statement or subsequent ? The counter claim raised is as follows:
For an order of this Court to appoint an advocate commissioner to conduct elections to the executive committee of all the Sakhas from among the members of the Sakhas as on 18.8.2002, with consequential formation of the Mandalam Council, election of Mandalam Executive, formation of District Council, election of District Executive, formation of the State Council, election of the State executive followed by the election of the President, General Secretary and other office bearers, within a time frame to be fixed by the Court.
The pleading introduced by the amendment of the written statement is that all elected office bearers of the plaintiff society automatically ceased to hold office at the end of 2002 by efflux of time and no elections have been held after 1999 to form the Sakha Executive at the grass roots level and no Mandalam Councils have been formed and without Mandalam Councils no Mandalam Executive come into existence and neither District Council nor District Executive nor State Council nor State Executive could be formed and therefore the society is not having any office bearers. By raising the counter claim defendants sought to get a decree for conducting the elections. If an independent suit is to be filed for that relief, it cannot be said that the cause of action arose only in November 2005. 18.11.05 shown as the date of cause of action is the date of disposal of the revision whereunder the direction earlier granted by the District Judge to conduct the election was set aside. That does not mean that the cause of action for the decree sought for in the counter claim arose on 18.11.05. As per the contentions in the counter claim there was no office bearers after the end of 2002 as all the office bearers have ceased to hold the office by efflux of time as provided under the Constitution. The written statement was filed only on 19.2.2003 much after the date when according to defendants the elected office bearers automatically ceased to hold office. Therefore it cannot be said that the counter claim is in respect of a cause of action that accrued to the defendants after the filing of the written statement or after the expiry of the period fixed for delivering the defence. Therefore Ext. P6 order cannot be challenged as violati ve of provisions of Rule 6 A.
15. The other objection raised by the learned Counsel appearing for the petitioner was failure to seek leave of the court.... It was argued by Advocate Sri.Sohan that eventhough a defendant is entitled to raise a counter claim after filing of the written statement, by either amending the written statement or by filing an additional statement under Order VIII Rule 9, it is not a right and it could only be allowed at the discretion of the court and that too leave of the court being sought and granted.
16. The following observation of the Apex Court in Ramesh Chand Ardawatiya 's case (AIR 2003 SC 2508) deals with that aspect:
Secondly a counter claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed.
Order VIII Rule 6A does not provide for filing a separate petition seeking leave of the court. Order VI Rule 17 provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Rule 17 contemplates an application seeking leave of the court, for permission to amend the plaint or written statement. As stated earlier, a defendant is entitled to raise a counter claim as of right only along with the written statement filed under Rule I. The defendant is entitled to raise a counter claim by either of the other two modes only with the leave of the court. It is only subject to the exercise of discretion conferred on the court. Ext. P4 is an application filed by the defendant for permission to amend the written statement by introducing the counter claim. The affidavit filed along with Ext. P4 application shows that leave of the court was sought for filing the additional written statement raising the counter claim. The argument that apart from that application, there should be another application seeking leave to raise the counter claim is a hyper technical plea when leave is sought to amend the written statement by a petition under Order VI Rule 17 of the Code with an affidavit explaining the reasons, it cannot be insisted that in addition to that petition seeking leave, defendant has to file another petition seeking leave to accept the counterclaim, one application seeking leave would be sufficient. Though it was argued that in view of the directions of the court to dispose of the suit expeditiously the counter claim should not have been entertained, it is not disputed that trial of the suit has not started considering the very purpose of enacting Rule 6A of Order VIII to avoid multiplicity of judicial proceedings and saving the valuable time of the court and excluding the inconvenience of the parties in facing several trials for the reason that the court directed the suit to be disposed expeditiously the prayer to raise the counter claim could not be rejected. As provided under Sub-rule (3) of Rule 6A a plaintiff is entitled to file a written statement in answer to the counter claim. In such circumstances, the trial court exercised the discretion vested in it on sound legal principles. There is no infirmity in Ext. P6 order. Exercising the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India no interference is called for.
Writ Petition fails and is dismissed.