SHYAMAL KUMAR DAS Vs. SANJOY CHOWDHURY

JUDGEMENT

(1.) This revisional application is directed against an Order No. 81 dated 26th September, 2007, and Order dated 7th January, 2008, passed by the learned Civil Judge (Senior Division), First Court at Barasat in Title Suit No. 84 of 1997, by which an application for reconsideration of an order dismissing an application for accepting counter-claim was rejected. In a suit for specific performance of an agreement for sale, the petitioner appeared and disclosed his defence by filing the written statement. Subsequently, the opposite party filed an application for amendment to incorporate the alternative relief of refund of the earnest money which was eventually allowed. The petitioner was permitted to file additional written statement thereafter. After filing the additional written statement, the petitioner sought to make counter-claim under Order 8 rule 6A of the Code of Civil Procedure and filed an application for acceptance thereof.

(2.) It appears that the Trial Court, while considering the gamut of the provisions contained under Order 8 Rule 6A of the Code of Civil Procedure, observed that the counter claim is maintainable if the cause of action arose after the institution of the suit and before the delivery of defence. It was held that after filing of the written statement, the counter-claim cannot be made by the defendant-petitioner.

(3.) The Apex Court in case of Ramesh Chand Ardawatiya vs. Anil Panjwani, 2003 7 SCC 350, held that the counter-claim can be set up in three eventualities - firstly, by filing a written statement under Rule 1 of Order 8 and incorporating the counter-claim as envisaged under Order 8 Rule 6A of the Code of Civil Procedure, secondly, by way of an amendment of the written statement with the leave of the Court incorporating the counter-claim, and thirdly, counter claim by way of a subsequent pleading under Rule 9 of Order 8 of the Code of Civil Procedure.