BHAVANI BUILDERS Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) SINCE both these revision applications raise a common question of law and fact, they are being decided and disposed of by this common order.

(2.) IN Special Civil Suit No, 73/1986 and Special Civil Suit No. 218/1987 pending before the learned Civil Judge (S.D.), Jalgaon, defendant/Petitioner herein filed a counter -claim and no reply to the said counter -claim was submitted by the original plaintiff/respondent herein, and therefore, defendant plaintiff in the counter -claim) submitted an application, that the counter -claim be decided as having not been replied. After this application was submitted, but before the learned Judge could exercise his discretion, plaintiff filed a written statement in reply to the said counter claim, and since reply to the counter -claim was received, learned Civil Judge (S.D.), Jalgaon, vide his order dated 26th February, 1991, was pleased to reject application of the defendant to decide the counter -claim in the absence of the reply. This order dated 26th February, 1991 was sought to be reviewed by the defendant, and the learned Jt. Civil Judge (S.D.), Jalgaon, was pleased to reject this application challenge, both, rejection of the application of the plaintiff to decide the counter -claim as well as rejection of the application of the review to review the said order in both the Suits.

(3.) RULE 6E of Order VIII of the Code of Civil Procedure, 1908 as inserted by Act No. 104 of 1976, reads as follows : - If the plaintiff makes default in putting in a reply to the counter -claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter -claim made against him, or make such order in relation to the counter -claim as it thinks fit. Rule 13 speaks about the counter -claim which the defendant may set up in addition to the set -off which he may claim in a suit filed against him by the plaintiff. It states, that the counter -claim shall not have the same effect so as to pronounce final judgment in the matter. It also lays down, that the plaintiff may file reply to the counter -claim within a period of four weeks after service upon him of a copy of the defendant's counter -claim. Rule 21 provides for the consequence about the default in reply to the counter -claim. It reads as under : - If the defendant to the counter -claim makes default in putting in reply to the counter -claim, the defendant in the suit, who is the plaintiff to the counterclaim, may, in such cases get the suit set down for judgment on the counterclaim, and such judgment shall be given as the Court shall consider him to be entitled to. It is true, as we find in the language of Order VIII, Rule 5, the word 'discretion' has not been used here by the Legislature. It is also true that the word 'shall' has been used by the Legislature. But it simply indicates what judgment should be passed. It has no reference to setting down a suit for judgment on the counter -claim. The word 'shall' used in statutory provision will have to be read in the context in which it is used. As was observed by Hidayatullah, J. in Sainik Motors, Jodhpur v. State of Rajasthan : [1962]1SCR517 , the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands. Cumulative reading of all these rules goes to show that the counter -claim filed by the defendant is put on par with the suit filed by the plaintiff and the non -filing of the reply in respect of both shall have the same consequence. If the reply is not filed within the time stipulated in the rule, the party filing the plaint or the counter -claim is at liberty to pray to the Court that the judgment be pronounced. The Court is not duty bound to pass a decree merely for asking.