Surya Prakash Kesarwani, J. - (1.) Heard Shri Anil Kumar Pandey, learned counsel for the defendant -revisionist.
(2.) Learned counsel for the defendant -revisionist submits that his application has been rejected by the impugned order dated 10.9.2015 by the court of Additional District Judge, Court No. 18, Agra on the ground that application for counter claim under the facts and circumstances of the case, is barred by Order 8 Rule 6 -A of C.P.C. and the said application was belatedly filed after five years of filing of the written statement. He submits that in view of the law settled by the Hon'ble Supreme Court in the case of Baldev Singh and others vs. Manohar Singh and another, : 2006 (6) SCC 498 (Paras 8 and 12), the amendment application filed by the defendant -revisionist under Order 6 Rule 17 read with Order 8 Rule 6 -A of C.P.C. should have been liberally considered and it should have been allowed. He further submits that Order 8 Rule 6 -A of C.P.C. provides for counterclaim to be filed before delivery of defence, has been misinterpreted by the trial court by observing that the counterclaim should have been filed before filing of the written statement or before framing of the issues. He further submits that the said finding of the trial court is unsustainable in view of the law laid down by Hon'ble Apex Court in the case of Rohit Singh and others vs. State of Bihar (now state of Jharkhand) and others, : 2006 (12) SCC 734 as under: "18. After this, the witnesses of the plaintiff were recalled and permitted to be cross -examined by these defendants. That was on 5.10.1996. Again the witnesses for defendants 1 and 2, were recalled and they were permitted to be cross - examined on behalf of these defendants. The evidence on the side of defendants 3 to 17 was let in. It commenced on 24.2.1997 and was closed on 30.1.1997. Thereafter arguments were heard again and the arguments on the side of the defendants including that of defendants 3 to 17 were concluded on 4.3.1997. The suit was adjourned for arguments on the side of the plaintiff. On 5.3.1997, the suit was dismissed for default of the plaintiff. It was then restored on 29.5.1998. It was thereafter on 5.6.1998, that defendants 3 to 17 filed an application for amending the written statement. The amendment was allowed on 20.7.1998. There was no order treating the amended written statement as a counter -claim or directing either the plaintiff or defendants 1 and 2 to file a written statement or an answer thereto. Defendants 3 to 17 had questioned the pecuniary jurisdiction of the trial court in their written statement. That plea was permitted to be withdrawn on 4.2.1999. It is clear that after the evidence was closed, there was no occasion for impleading the interveners. Even assuming that they were properly impleaded, after they had filed their written statement, the suit had gone for further trial and further evidence including that of the interveners had been taken, the evidence again closed and even arguments on the side of the interveners had been concluded. The suit itself was dismissed for default only because on behalf of the plaintiff there was a failure to address arguments. But the suit was subsequently restored. At that stage no counter -claim could be entertained at the instance of the interveners. A counter -claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counter -claim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so called counter -claim of defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the counter -claim so called, filed by defendants 3 to 17 has to be held to be not maintainable. 21. Normally, a counter -claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter - claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co -defendants in the suit. But a counter -claim directed solely against the co -defendants cannot be maintained. By filing a counter -claim the litigation cannot be converted into some sort of an inter -pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter -claim, in our view, should not have been entertained by the trial court. 22. The observations of this Court in Ramesh Chand Ardawatiya (Supra) that: "28. Looking to the scheme of Order 8 as amended by Act 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 1 read with Rule 6 -A would be a counterclaim 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." are of no avail to defendants 3 to 17 on the facts and in the circumstances of this case. In the reported decision, this Court did not have to consider whether a counter -claim can be filed after the trial is concluded and whether it could be solely directed against a co -defendant. The Court was also not dealing with an inchoate counter -claim in that case.
(3.) Further submission of the learned counsel for the defendant -revisionist is that the agreement between the plaintiff and the respondent contains an arbitration clause, and as such, plaint itself was liable to be rejected under Order 7 Rule 11 of C.P.C. The application of the defendant -revisionist under order 7 rule 11 of C.P.C. was wrongly rejected by the trial court vide order dated 28.7.2010. He further submits that after rejection of his application, the defendant -revisionist filed an application under Order 6 Rule 17 of C.P.C. read with Order 8 Rule 6 -A of C.P.C., and thus, the application cannot be said to be a belated one.;