- (1.) The petitioner, who was defendant in a suit, aggrieved by the order passed by the trial Court 20th December, 2004, whereby the trial Court allowed the objection raised on behalf of the plaintiff- respondent in this writ petition, bearing paper No. 10 Ga, to the effect that though the defendant has put in appearance on 23rd August, 2004, but he has not filed his written statement and more than 90 days have already elapsed but no written statement has been filed. In view of the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, the Court does not have any power to extend or grant further time for filing the written statement, it was therefore prayed by means of the aforesaid objection 10 Ga that Court may now proceed for hearing of the suit. The trial Court accepted the objection filed by the plaintiff-respondent and directed that the suit may come up on 28th January, 2005 for arguments. Aggrieved by the order dated 20th December, 2004, passed by the trial Court, referred to above, the petitioner-defendant preferred a revision before the revisional Court. The revisional Court vide its order dated 24th February, 2005 upheld the order passed by the trial Court observing that beyond 90 days of service of the summons, the Court has no power to extend time for filing the written statement, therefore the order passed by the trial Court does not warrant any interference and the revision has been dismissed summarily.
(2.) Learned counsel appearing on behalf of the petitioner-defendant in support of his contention has relied upon a decision of the Apex Court reported in 2005 (1) JT (SC) 50 : AIR 2005 SC 514, Iridium India Telecom Ltd. v. Motorola Inc., wherein the Apex Court has ruled that in the matter where the High Court exercises the original jurisdiction, High Court has power to extend the time for filing the written statement even beyond the time contemplated under Order VIII, Rule 1 of the Code of Civil Procedure. It was therefore contended by learned counsel for the petitioner that in view of the decision of the Apex Court in the case of Iridium India Telecom Ltd (supra), the view taken by the revlsional Court as well as by the trial Court deserves to be quashed and the petitioner is entitled for a direction to be issued to the trial Court to reconsider the application 10- Ga
(3.) Learned counsel appearing on behalf of the plaintiff respondent has relied upon a decision of this Court reported in 2005 (1) All WC 948 AIR 2005 All 12 2005 All LJ 98, Dr Nanda Agrawal v Matri Mandir, Varanasi, and the decision of the Apex Court reported in 2003 (3) All WC 2511 AIR 2003 SC 2508, Ramesh Chand Ardawatiya v Anil Panjwani Learned counsel for the plaintiff- respondent has relied upon Paragraphs 28 and 29 in the case of Ramesh Chand Ardawatiya (supra), which are reproduced below - "(28) 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 a counter-claim in a civil suit Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 9 read with Rule 6A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6A 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 counterclaim may be filed by way of a subsequent pleading under Rule 9 in the latter two cases, the counter-claim though referable to Rule 6A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Or der 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 The purpose of the provision enabling filing of a counterclaim is to avoid multiplicity of judicial proceeding and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counterclaims that is, all disputes between the same parties being decided in the course of the same proceedings If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging oi 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 be lated counter-claim The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceed ing 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 for trial, and more so when the trial has already commenced But cer tainly, a counter-claim is not entertainable when there is no written statement on record There being no written statement filed in the suit, the counter-claim was ob viously not set up in the written statement within the meaning of Rule 6A There is no question of such counter-claim being intro duced by way of amendment for there is no written statement available to include a counter-claim therein Equally there would be no question of a counter-claim being raised by way of subsequent pleading as there is no 'previous pleading on record In the present case, the defendant having failed to file any written statement and also hav ing forfeited his right of filing the same the trial Court was fully justified in not enter taming the counter-claim filed by the de fendant-appellant A refusal on the part of the Court to entertain a belated counter claim may not prejudice the defendant be cause in spite of the counter claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim (29) The purpose of the defendant which was sought to be achieved by moving the application dated 2-5-1995 under Order VIII Rule 6A of the C P C was clearly mala fide and an attempt to reopen the proceedings including that part too as had stood con eluded against him consequent upon rejec tion of his application under Order IX Rule 7 of the C P C Fortunately the trial Court did not fall into the defendant's trap If only the trial Court would have fallen into the error of entertaining the counter-claim the defendant would have succeeded in indirectly achieving the reopening of the trial in which effort, when made directly, he had already failed. There being no written statement of the defendant available on record and the right of the defendant to file the written statement having been closed, finally and conclusively, he could not have filed a counter-claim.";