Vijay Prakash Jarath vs Tej Prakash Jarath

1. The respondent before this Court – Tej Prakash Jarath filed Suit No.608 of 1992 on 09.11.1992. In the aforesaid suit, defendants Nos.3 and 4 – Om Prakash Jarath (the father of the plaintiff in the suit) and Vijay Prakash Jarath (the elder brother of the plaintiff) respectively, filed written statements on 11.11.1992. Thereupon, issues came to be framed on 18.10.1993. After the framing of the issues, the petitioners before this Court (i.e. defendant Nos.3 and 4 in the original suit), filed a counter- claim on 17.06.1996 i.e. almost two and a half years after the framing of the issues.

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 That plea was permitted to be withdrawn on 4.2.1999.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 so called counter-claim, filed by Defendants 3 to 17 has to be held to be not maintainable.

10. For the reasons recorded hereinabove, we set aside the impugned order passed by the High Court dated 02.01.2008, and restore the order passed by the trial court dated 28.10.1996.

11. The appeals are allowed in the above terms.

12. Needless to mention, that it shall be open to the respondent- plaintiff to raise all pleas open to him through the written statement which is filed by the respondent-plaintiff, to the counter claim. Civil Appeal No.2310 of 2016 (Arising out of SLP(C)No.32118 of 2009)

13. Leave granted.

MARCH 1, 2016.