Smt K R Gangamma v. Chowdappa Bhovi

Order dated

08.11.2021 passed on the application filed under Order VIII rule 6A of the Civil Procedure Code in O.S.No.472/2010 in IA.No.XVII by the Learned Principal Civil Judge & JMFC at Madhugiri, as per Annexure-A and thereby allowed the application. b) Issue any other appropriate writ, order of direction as this Hon'ble court deems fit to grant under the facts and circumstances of the case, to meet the ends of justice and equity."

¶2Heard the learned counsel for the petitioner, the learned counsel for the respondents and meticulously perused the material available on record.

¶3The respondents filed a suit in OS.No.472/2010 seeking relief of partition and separation possession of the plaintiffs 1/5th share each in all the suit schedule properties by metes and bounds, as the decree passed in OS.No.155/2009 in respect of suit item No.3 in favour of defendant No.2 is not binding on the plaintiffs share. In the said suit, the defendants filed their detailed written statements as well as an additional written statement. Thereafter, defendant No.2 filed an application under Order VIII Rule 6A of the Code of Civil Procedure (for short 'CPC') seeking permission to file a counterclaim. In the said counterclaim, defendant No.2 is seeking prayer of declaration that she is the lawful owner in possession of counterclaim property as per Will dated

14.02.2009, along with the consequential relief of permanent injunction. The plaintiffs opposed the said application. The trial Court, under the impugned order rejected the application by assigning detailed reasons that the application was filed after an inordinate delay of nine

years and that no satisfactory explanation had been offered for such delay.

¶4It is to be noticed that the respondents' suit is one for partition and separate possession. The trial Court framed the issues way back in the year 2011. Thereafter, the petitioner/defendant No.2 in the said suit was impleaded on 16.04.2012, pursuant to which she was allowed to file written statement. Thereafter, at the instance of plaintiffs, the pleadings were amended and again opportunity was provided to the defendants to file an additional written statement, which they have filed. The matter was then posted for framing of additional issues. On 30.08.2013, as there were no additional issues, the matter was posted for evidence of the plaintiffs.

¶5The records further indicate that the plaintiff examined himself as PW1 on 24.06.2019 and PW1 was further examined in chief on 25.09.2019. Thereafter, defendant No.2 filed the present application seeking

permission to file a counterclaim on 02.02.2021. The trial Court rightly recorded the reason that the application had been filed after lapse of nine years from the date of filing of the written statement. The records also indicate that defendant No.2 had filed a written statement. Later, she was permitted to file an additional written statement; even then the counterclaim was not filed. The trial Court framed the issues and plaintiff has been examined in the proceedings. Thereafter, an application was filed by defendant No.2 along with the counterclaim. In these circumstances, the trial Court has rightly rejected the application.

¶6The Hon'ble Supreme Court in the case of Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others1 at paragraph Nos.20 and 21 held as under: "20. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognise the practical difficulties faced by the litigants across

1 (2020) 2 SCC 394

the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognised as well (refer to Salem Advocate Bar Assn. case [Salem Advocate Bar Assn.

(2) v. Union of India, (2005) 6 SCC 344 : AIR 2005 SC 3353] ).

¶21We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing counterclaim after filing written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

(i) Period of delay.

(ii) Prescribed limitation period for the cause of action pleaded.

(iii) Reason for the delay.

(iv) Defendant's assertion of his right.

(v) Similarity of cause of action between the main suit and the counterclaim.

(vi) Cost of fresh litigation.

(vii) Injustice and abuse of process.

(viii) Prejudice to the opposite party.

(ix) And facts and circumstances of each case.

(x) In any case, not after framing of the issues."

¶7In view of enunciation of the law laid down in the aforesaid decision, the counterclaim cannot be entertained after framing of issues and commencement of trial. Hence, there is no merit in the present petition. Accordingly, the writ petition is devoid of merits and the same is rejected.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE

ABK List No.: 1 Sl No.: 27

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.6291/2022 (GM-CPC) BETWEEN: SMT. K.R. GANGAMMA D/O RAMANNA AGED ABOUT 64 YEARS R/O KEREGALAPALYA CHINAKAVAJRA MAJARA KASABA HOBLI, MADHUGIRI TALUK TUMKUR DISTRICT - 572101 . …PETITIONER (BY SRI. K.P. BHUVAN, ADV.,) AND: 1. CHOWDAPPA BHOVI SINCE DEAD BY LR'S. SMT. HANUMAKKA 1ST WIFE OF LATE CHOWDAPPA BHOVI AGED ABOUT 60 YEARS. 2. SMT. ANKAMMA 2ND WIFE OF LATE CHOWDAPPA BHOVI AGED ABOUT 50 YEARS. 3. SRI. RAMAKRISHNAPPA SON OF LATE CHOWDAPPA BHOVI AGED ABOUT 48 YEARS. 4. SMT. BHAGYAMMA D/O OF LATE CHOWDAPPA BHOVI by RUPA V Location: HIGH COURT OF KARNATAKA AGED ABOUT 34 YEARS. RESPONDENT NOS.1 TO 4 ARE R/AT. THINGALURU VILLAGE KODIGENAHALLI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT -572101. 5. SRI. T.C. RAMA BHOVI SON OF LATE CHOWDA BHOVI AGED ABOUT 75 YEARS. 6. SRI. ASHWATHA BHOVI SON OF CHOWDA BHOVI AGED ABOUT 67 YEARS. 7. BARAMARAJU SINCE DEAD BY LR'S. SMT. RATHNAMMA W/O BARAMARAJU AGED ABOUT 50 YEARS. 8. SRI. SHASHIKUMAR S/O BARAMARAJU AGED ABOUT 33 YEARS. 9. SRI. RAVIKUMAR W/O BARAMARAJU AGED ABOUT 31 YEARS. RESPONDENT NOS.5 TO 9 ARE ALL R/AT THINGALURU VILLAGE KODIGENAHALLI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT -572101. …RESPONDENTS (BY SRI. H.P. LEELADHAR, ADV., FOR R1 TO R9) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE IMPUGNED ORDER DATED 08.11.2021 PASSED ON THE APPLICATION FILED UNDER ORDER VIII RULE 6A OF THE CIVIL PROCEDURE CODE IN OS.NO.472/2010 IN IA NO.XVII BY THE LEARNED PRL. CIVIL JUDGE AND JMFC AT MADHUGIRI, AS PER ANNEXURE-A AND THEREBY ALLOWED THE APPLICATION & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed seeking the following reliefs: "a) Issue a Writ of Certiorari, quashing impugned