1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.28 of 1999 . in Suit No. 3227 of 1986 M/s. Shyam Construction Company .. Plaintiffs v/s. Minna Clara Mendes & Anr. ..Defendants Mr.D.D.Madon, Sr. Counsel with K.H.Modi i/b. Panchmatia & Co.for the Plaintiffs/Applicants in Chamber Summons Mr.Chirag Balsara, Rajesh Talekar i/b. K. Asher & Co. for the Defendants CORAM : R.Y.GANOO, J. DATED : 23rd June , 2010 P.C. : 1. Before the commencement of the hearing, learned Counsel appearing on behalf of the defendants pointed out to the court that by earlier order passed by this Court, it was ruled that the chamber summons should be heard along with suit. It is required to be mentioned that the plaintiffs had instituted this suit for specific performance of the suit agreement. As against that, counter claim was filed for recovery of possession. In a situation like this, it is difficult to say that this 2 chamber summons should be adjourned till hearing of the suit. It would mean that the court is required to proceed with the hearing of the suit and it is at that time the chamber summons is decided. I feel it proper to hear the chamber summons first and then proceed to hear the suit/ counter claim after the decision in this chamber summons. Since this arrangement was felt is proper, in the interest of justice, this court took up the hearing the chamber summons on merits and accordingly counsels are heard in the matter. 2. This chamber summons is taken out by the plaintiffs for an order that the counter claim filed by the defendants should not be taken on record, or it should be excluded from the suit. Parties herein have completed the pleadings. Few facts are required to be stated which are as follows. 3. Plaintiffs entered into an agreement to sale on 27.12.1979 in respect of the suit premises described in the plaint. The suit came to be filed for specific performance. Written statement came to be filed on 23/11/1987. Plaintiffs apprehended that the defendants would dispossess the plaintiffs from the suit premises without following the 3 provisions of law. For that plaintiffs filed suit in City Civil Court, Bombay being Suit No.4681 of 1980. The said suit came to be decreed on 22.8.1980 and thereafter the defendants thought it fit to file counter claim praying for recovery of the possession of the suit premises from the plaintiffs calling plaintiffs as tresspasser. After this counter claim came to be lodged in the court, this chamber summons has been taken out. 4. I have heard learned Counsels on both sides. Learned Sr. Counsel Mr. Madon appearing on behalf of the plaintiffs took me through the provisions of Order 8 Rule 6(A) and tried to submit that since the counter claim came to be filed on 22.8.1998 i.e. after the filing of the written statement, the same cannot be taken on record and acted upon. Some arguments were advanced by learned Senior Counsel on the question of accrual of cause of action to the defendants for the purpose of lodgment of counter claim. As against this, learned Counsel Mr. Balsara appearing on behalf of the defendants relied upon the following judgments to submit that the counter claim can be filed even after the filing of the written statement, (a) Mahendra Kumar & Anr. Vs. State of Madhya Pradesh & Ors, reported in 4 (1987) 3 SCC 265, and (b) Shanti Rani Das Dewanjee (Smt.Dinesh Chandra Day (1997) 8 Supreme Court Cases 174. 5. I have perused the said judgments. The submission advanced by learned Counsel Mr. Balsara that counter claim can be filed even after filing of written statement is right in view of the judgments referred to above. 6. Learned Counsel Mr. Madon relied upon the provisions of Order 8 Rule 9 C.P.C. As of 1998 and submitted that to take the counter claim on record after the filing of the written statement, leave of the court is required to be obtained. Before we proceed further to appreciate this argument, the relevant rule which was then prevailing in the year 1998 is as follows: “No pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter claim shall be presented except by leave of the Court and upon such terms as this Court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.” 5 7. Learned Counsel Mr. Madon submitted that it was necessary for the defendants to obtain leave of the court before tendering the counter claim after the filing of the written statement and as record shows that no such leave was obtained. He submitted the court should not accept the counter claim and the chamber summons should be granted. As against this, learned Counsel Mr.Balsara, appearing on behalf of the defendants submitted that obtaining leave is matter of formality and is curable defect. He also submitted that the words ‘written statement or additional written statement’ appearing in the later portion of Rule 9 Order 8 of CPC should be interpreted to mean counter claim as well. 8. I have considered this submission. In my view, if defendants have not taken leave to tender counter claim after filing of the written statement, then counter claim will have to be excluded. Provisions of Rule 9 make out clear cut case that if counter claim is being filed after filing of the written statement it is obligatory upon the person filing the counter claim to obtain the leave. Even if the argument of Mr.Balsara that obtaining leave is formality is accepted still the defendants have not proceeded to cure the defect since 1999 till 2010 6 i.e. till hearing of the Chamber Summons. The Chamber Summons is taken out in 1999 and has been duly served upon the defendants. The defendants could have taken steps to cure the defect. Since no leave has been obtained till date, the defect is not cured and hence the provisions of Rule 9 would be attracted and the counter claim will have to be excluded. 9. The argument advanced by learned Counsel Mr. Balsara that the word “written statement or additional written statement” appearing in later part of Rule 9 should be read to include “counter claim” cannot be accepted. The legislature would have specifically used the word “counter claim’. Hence the argument advanced by learned Counsel Mr. Madon based on application of Rule 9 Order 8 of CPC is required to be accepted. 10.For the reasons mentioned aforesaid, in the absence of leave secured by the defendants to file counter claim, after filing of written statement the said counter claim is required to be excluded as prayed for and to that extent the chamber summons is required to be granted. 7 11.Since chamber summons is being granted, question whether the defendants had cause of action at or about the particular time and other aspects argued by learned Counsel for the plaintiffs need not be gone into. 12.The Chamber Summons is made absolute in terms of prayer clause (a). There shall be no order as to costs. Suit shall proceed excluding counter claim. Suit to come up in usual course. [R.Y.GANOO, J.]