Ranjit Singh vs Kartara Ram and another

J.V. Gupta, J.

This petition is directed against the order of the trial Court dated March 13, 1985, whereby the application filed on behalf of the plaintiff for permission to file the written statement to the claim of set off pleaded by the defendant was declined.

The plaintiff filed the suit for the recovery of Rs. 65,452/. In the written statement filed on behalf of the defendants, counterclaim and set off were pleaded. The plaintiff was called upon to file replication. In spite of many adjournments, the replication was not filed by the plaintiff. On February 8, 1985, the learned counsel for the plaintiff stated at the Bar that the replication is not to be filed. Consequently, the trial Court framed the issues on that day and adjourned the case for the plaintiff''s evidence on April 24, 1985. Meanwhile,the plaintiff moved an application dated March 5, 1985, for permission to file the written statement to the counterclaim and set off pleaded by the dependents in the written statement which prayer was declined by the trial Court by the impugned order.

After hearing the learned counsel for the parties, I am of the opinion that the provisions of Order 8, rules 6A to 6G which were inserted by way of amendment in the Civil Procedure Code in the year 1976 were not brought to the notice of the Court by either of the party. Clause (3) of rule 6A provides that the plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. Clause (4) further provides that the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints. Rule 6G provides that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counterclaim. Thus reading these provisions it is quite evident that the plaintiff was entitled to file the written statement in answer to the counterclaim.

In this view of the matter, the petition succeeds, the impugned order is set aside and the plaintiff is allowed to file his written statement to the counterclaim of the defendant. Since the case was unnecessarily delayed on account of the conduct of the plaintiff in not filing the replication and now claiming his right to file the written statement in accordance with the said provisions, he will be allowed to file the written statement on payment of Rs. 300/ as costs. Apart from that, the defendantrespondents will also be entitled to the costs of this Court. The parties have been directed to appear in the trial Court on September 2, 1985.