Plaint to be rejected when the statement in the plaint is barred by any law: Calcutta High Court
Rule 11(d) of the Civil Procedure Code (CPC) stipulates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. This was reiterated by the Hon’ble Justice Sabyasachi Bhattacharyya in the case of Nirmalendu Mishra alias Jyotin Mishra and others Vs. Sri Swapan Raj and others [C.O. No.1115 of 2021] on the 2nd of August 2021 before the Hon’ble High Court of Calcutta [appellate side]. The brief facts of the case are, the dispute arises out of a suit for cancellation of a Deed of Exchange dated November 10, 1983 and for recovery of possession in respect of ‘ka’ schedule property against the predecessor of defendant nos. 1 to 8. The opposite party nos. 1 and 2 were arrayed as proforma defendant nos. 25 and 26 in the suit, bearing Title Suit No. 22 of 2003. By the first impugned order, dated June 16, 2020, the trial court accepted the belated written statement filed by the defendant nos. 25 and 26/opposite party nos. 1 and 2 on contest with costs of Rs.9,000/. By the subsequent order dated March 9, 2021, the two applications of the revisionist petitioners, both under Order VIII Rule 6-C of the Code of Civil Procedure, were rejected on contest and the written statement, along with counter-claim, dated September 6, 2019 of opposite party nos. 1 and 2 was accepted. Aggrieved by this, the present plaint is filed. The counsel for the petitioner submits that the counter-claim was ex facie barred by limitation since the same was filed after about 17 years from the date impugned in the counter-claim. The show-cause of the opposite party nos. 1 and 2 as well as their written statement were accepted after about 17 years’ delay. It is argued that the information of the suit, received by the advocate for the opposite party nos. 1 and 2, was allegedly received after an order was passed by this court, rejecting the plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code, seeking to introduce a similar relief as sought in the counter-claim. Hence, the opposite party nos. 1 and 2, being proforma defendants in the suit, were set up by the plaintiffs to defeat the order of the High Court by introducing a time-barred counter-claim. The counsel for the respondents submits that at the stage of accepting the written statement and entertaining the counter-claim, the court cannot go into the merits of the counter-claim.
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.O. No.11121 Nirmalendu Mishra alias Jyotin Mishra and others Sri Swapan Raj and others Mr. Sounak Bhattacharya Mr. Raghunath Das Mr. Sounak Mondal Mr. Ashim Kumar Routh For the petitioners For the opposite party nos. 1 and 2 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: This is a contest between two sets of defendants the petitioners being defendant nos. 5 7 24(ka) and 24(kha) and the opposite parties proforma defendant nos. 25 and 26 in the suit. The dispute arises out of a suit for cancellation of a Deed of Exchange dated November 10 1983 and for recovery of possession in respect of ‘ka’ schedule property against the predecessor of defendant nos. 1 to 8. The opposite party nos. 1 and 2 were arrayed as proforma 2 defendant nos. 25 and 26 in the suit bearing Title Suit No. 22 of By the first impugned order dated June 16 2020 the trial court accepted the belated written statement filed by the defendant nos. 25 and 26 opposite party nos. 1 and 2 on contest with costs of Rs.9 000 . By the subsequent order dated March 9 2021 the two applications of the revisionist petitioners both under Order VIII Rule 6 C of the Code of Civil Procedure were rejected on contest and the written statement along with counter claim dated September 6 2019 of opposite party nos. 1 and 2 was accepted. Learned counsel for the petitioners contends that Order VIII Rule 6 A of the Code of Civil Procedure contemplates only counter claims against the claim of the plaintiff. In the present case the opposite party nos. 1 and 2 have filed the counter claim against the defendants petitioners as well. Such counter claim against co defendants it is argued is not maintainable in law. Learned counsel further contends that the counter claim was ex facie barred by limitation since the same was filed after about 17 years from the date impugned in the counter claim. The show cause of the opposite party nos. 1 and 2 as well as their written statement were accepted after about 17 years’ delay. It is argued that the information of the suit received by the advocate for the opposite party nos. 1 and 2 was allegedly received after an order was passed by this court rejecting the plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code seeking to introduce a similar relief as sought in the counter claim. Hence the opposite party nos. 1 and 2 being proforma defendants in the suit were set up by the plaintiffs to defeat the order of the High Court by introducing a time barred counter claim. Learned counsel for the petitioner further contends that it is evident from the counter claim that the cause of action therefor was the ‘threat of dispossession’ against the opposite party nos. 1 and 2 which did not disclose any cause of action for the relief sought that is recovery of possession. Hence the trial court it is argued acted without jurisdiction in accepting the belated written statement and in rejecting the petitioner’s application for exclusion of such counter Placing reliance on the judgment of Ananta Halder Vs. Haridashi Halder and others reported at 2019 ICC 182 wherein this court had held following a judgment of the Supreme Court and a previous order of this court that unless costs were condition precedent of the rest of the order acceptance of costs would not tantamount to estoppel debarring the person accepting cost from challenging the said order learned counsel contends that the costs granted by the first impugned order was received by the advocate appearing for the petitioners in the court below erroneously without taking proper instruction from his clients which would not ipso facto debar the petitioners from preferring the instant challenge since costs were not a pre condition of accepting the written statement. By placing reliance on Estate Officer Haryana Urban Development Authority and another Vs. Gopi Chand Atreja reported at4 SCC 612 learned counsel for the petitioner argues that the Supreme Court categorically laid down the law that the failure of the lawyer to take timely steps resulting in causing delay cannot be recorded as a sufficient cause within the meaning of Section 5 of the Limitation Act and it was equally the duty of the appellants to see that the appeal be filed in time. 10. Next citing Kailash Vs. Nanhku and others reported at 4 SCC 480 learned counsel for the petitioner submits that ordinarily the time schedule prescribed by Order VIII Rule 1 of the Code has to be honoured and the defendant should be vigilant. Extension of time sought by the defendants for filing written statement can only be by way of exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. Hence it was held by the Supreme Court that a prayer seeking time beyond the statutory limitation for filing written statement ought to be made in writing and the court may indeed put the defendants on terms including imposition of compensatory costs etc. 11. Learned Counsel next places reliance on Rohit Singh and others Vs. State of Bihar and others reported at AIR 2007) SC 10 in support of the proposition that maintainability of a counter claim under Order VIII Rule 6 A was in question in case the counter claim contained therein was against co defendants. In reply learned counsel appearing for the opposite party nos. 1 and 2 argues that at the stage of accepting the written statement and entertaining the counter claim the court cannot go into the merits of the counter claim. 13. As far as the first impugned order is concerned the trial court exercised its judicial discretion to accept the written statement on the reasons given in the said order upon imposing substantial costs of Rs.9 000 on the opposite party nos. 1 and 2 which were accepted by the advocate for the said opposite parties in the court below. Hence there is no scope of reopening of such order in revision. 14. The petitioners it is argued accepted the first impugned order by not challenging the same till the second impugned order was passed. As such the first impugned order attained finality prior to filing of the revisional application. 15. That apart learned counsel argues Order VIII Rule 6 C of the Code can only be filed by plaintiffs and not co defendants as done in the present case by the revisionist petitioners. As far as the proposition that no counter claim is maintainable against co defendants it is argued that in the present case the reliefs in the counter claim are directed not only towards the co defendants but also the plaintiffs which validates such a counter claim. 16. Upon considering the submissions of the parties it is evident from a plain reading of Order VIII Rules 6 A to 6 G of the Code in particular sub Ruleof Rule 6 A that the counter claim shall be treated as a plaint and governed by the rules applicable to plaints. It is well settled that a counter claim has to be decided independently of the suit and has the trappings of an independent suit. Thus the provisions of Order VII Rule 11 of the Code which are applicable to amendment of plaints are also applicable to counter claims. 17. Rule 11(d) stipulates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In the present case the counter claim made against the plaintiffs challenging the deed executed by the plaintiffs on November 10 1983 and the consequential relief of declaration of 1 8th share of the counter claimants are palpably time barred. 18. That apart in view of the said relief challenging the deed in question by a previous order dated August 14 2019 passed by this court in C.O. No. 2720 of 2019 rejecting the amendment of the plaintiff in similar terms applying the proviso to Order VI Rule 17 the incorporation of the same relief by way of a counter claim would be palpably barred. It is evident that the relief sought in the counter claim against the plaintiffs is not only time barred but specifically designed to defeat the order passed by this court in C.O. No. 2720 of 2019 rejecting such amendment. 19. Hence the relief sought against the plaintiffs is palpably illusory. 20. That apart the prayer for recovery of possession sought against the co defendants which is the only relief remaining in the event the first two reliefs against the plaintiffs are negated was claimed only against co defendants. Since such prayer in view of the first two prayers against the plaintiffs being patently time barred assumes the character of the main relief claimed in the counter claim such counter claim is rendered to be solely against the co defendants thus not maintainable. That apart no cause of action for the relief of recovery of possession against the defendants is disclosed in the counter claim in so far as paragraph 4 thereof categorically pleads that the revisionist petitioners merely threatened the counter claimants opposite party nos. 1 and 2 to dispossess from the suit The threat of dispossession is not equivalent to dispossession and as such is not a cause of action at all rather contrary to the relief of recovery of possession claimed against the defendants. 21. What the plaintiffs could not achieve directly in view of rejection of their similar amendment application previously they sought to claim indirectly by setting up the opposite party nos. 1 and 2 who claimed such relief which was already refused to be incorporated by this Court in the garb of the counter claim of recovery of possession against the defendants. It is well settled that what cannot be directly granted in law cannot be obtained indirectly. Hence the effort of the opposite party nos. 1 and 2 to insert the relief of recovery of possession against the co defendants is an oblique and mala fide attempt to defeat the previous order of this court. 22. The counter claim against the plaintiffs is a sham relief claimed merely to by pass the rejection of the same prayer in the form of amendment sought by the plaintiffs previously by this court and is patently time barred. 23. The relief sought against the co defendants petitioners thus becomes the sole primary relief claimed in the counter claim independent of the reliefs claimed against the plaintiffs which renders the counter claim non maintainable in view of the specific language of Order VIII Rule 6 A which stipulates that counter claims can be filed only against the plaintiffs. 24. As far as the applicability of Order VIII Rule 6 A of the Code is concerned the subsequent application for exclusion of the counter claim by the petitioners although not maintainable in law loses relevance in view of the acceptance of written statement itself being patently illegal and amounting to permit an ex facie time barred relief to be incorporated by way of counter claim. Such an effort ought to be nipped in the bud as held by the Hon’ble Supreme Court in the context of rejection of plaints. 25. As far as the acceptance of costs by the advocate of the petitioners in the court below is concerned it is evident from the first impugned order bearing Order No.87 dated June 16 2020 that the said cost was not a condition precedent for acceptance of the show cause and the written statement filed by the opposite party nos. 1 and 2. The language of the said order clearly shows that the costs were directed over and above such acceptance. In fact the impugned order dated June 16 2020 reveals clearly that the trial court directed only the hearing of the petition under Order VIII Rule 6 of the Code of Civil Procedure after payment of such costs. Such stipulation is not a condition precedent for accepting the written statement or the show cause for late filing of the same but was merely to precede the hearing of the Order VIII Rule 6 applications. Thus the acceptance of such costs by the advocate for the petitioners in the court below cannot ipso facto preclude the petitioners from preferring the instant 26. However for the ends of justice such costs ought to be returned to the opposite party nos. 1 and 2 in view of this Court being of the opinion on the grounds as discussed above that Order No.87 dated June 16 2020 was passed without jurisdiction. 27. Accordingly C.O. No.11121 is disposed of setting aside Order No.87 dated June 16 2020 passed by the Civil Judge Second Court at Contai District Purba Medinipur in Title Suit No. 65 of 2013 and expunging the written statement and accompanying counter claim filed by the opposite party nos. 1 and 2 from the records of the suit. As far as the second impugned order bearing Order No.95 dated March 9 2021 is concerned in view of the rejection of the counter claim such rejection becomes academic 10 and irrelevant. Thus no further order need be passed in respect of the second impugned order. The petitioners shall refund the costs of Rs.9 000 received by their advocate in the court below to the opposite party nos. 1 and 2 directly or through the latter’s advocate in the court below within one week from date as a pre condition of this order. In default of such payment within the stipulated period this order shall stand automatically vacated without further reference to court. 28. There will be no order as to costs. 29. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. ) 