# Ganesh Swaroop Tandon v. Anchal Kumar Tandon and others

- **Citation:** (2007) 1 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-10-11
- **Case number:** Civil Misc. Writ Petition No. 32177 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganesh-swaroop-tandon-v-anchal-kumar-tandon-and-others-40838
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order 8 Rule-6A-counter claim-written statements filed
on 3.10.02-amendement application in
counter claim filed on 31.07.04-heldcould not be filed.

Held: Para 5

A perusal of the aforesaid provision
indicates that a counter claim could be
filed where the cause of action accrued
either before or after the filing of the suit
and, in· any case, before the filing of the
written statement. The counter claim
cannot be filed where the cause of action
accrued to the defendants after the filing
of the written statement. In the present
case, the written statement was filed on
3.10.2002 and-the cause of action, as
admitted by the defendant, accrued on
31.7.2004, i.e., after the filing of the
written statement. Clear1y the said-
counter claim could not be filed in the
present proceedings in view of the
mandatory provision of Order 8 Rule
6Aof the C.P.C.
Case law discussed:
AIR 1966 SC-2222
1 All] Ganesh Swaroop Tandon V. Anchal Kumar Tandon and others
229
AIR 1967 SC-3985
AIR 1987 SC-1395

## Text

228 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
receiver appointed by the Civil Court and
shall thereafter discharge the receiver
appointed by him.
(b) may make such other incidental
or consequential orders as may be just.

5. From the bare reading of the said
statutory provision, it is clear that if at the
time of passing an order under section
145(1) Cr.P.C. or after making of the
aforesaid order if the Magistrate considers
"the case to be one of emergency" or "if
he decides that none of the parties was
then in possession as is referred to under
Section 145" or "if he is unable to satisfy
himself as to which of them was then in
possession of the subject of dispute" he
can pass an order under Section 146(1)
Cr.P.C. These three conditions are sine
quo non for exercising power under
Section 146(1) Cr. P.C.

6. Suffice to it to say that two
subsequent conditions do not apply on the
facts of the present case. So far as the
first condition is concerned, the same is
related to a case of emergency. It is a
discretionary power of the Magistrate
based on his satisfaction on the tangible
material that emergency exist for passing
of an order under Section 146(1) Cr.P.C.
The said order can be withdrawn,
annulled or modified by him at any
subsequent stage of proceeding on being
satisfied that the emergency no longer
exists.

7. In view of the above, the order
under Section 146(1) Cr.P.C. can be
bracketed only within the purview of an
order which is interlocutory in nature and
not as an order which is final. Hence
revision under Section 397(2) Cr.P.C. is
barred against such an order.

8. This revision, therefore, is not
maintainable and is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.10.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 32177 of 2005

Ganesh Swaroop Tandon
...Petitioner
Versus
Anchal Kumar Tandon and others

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer

Counsel for the Respondents:
Sri T.A. Khan

Code of Civil Procedure-Order 8 Rule-6A-counter claim-written statements filed
on 3.10.02-amendement application in
counter claim filed on 31.07.04-heldcould not be filed.

Held: Para 5

A perusal of the aforesaid provision
indicates that a counter claim could be
filed where the cause of action accrued
either before or after the filing of the suit
and, in· any case, before the filing of the
written statement. The counter claim
cannot be filed where the cause of action
accrued to the defendants after the filing
of the written statement. In the present
case, the written statement was filed on
3.10.2002 and-the cause of action, as
admitted by the defendant, accrued on
31.7.2004, i.e., after the filing of the
written statement. Clear1y the said-
counter claim could not be filed in the
present proceedings in view of the
mandatory provision of Order 8 Rule
6Aof the C.P.C.
Case law discussed:
AIR 1966 SC-2222
1 All] Ganesh Swaroop Tandon V. Anchal Kumar Tandon and others
229
AIR 1967 SC-3985
AIR 1987 SC-1395

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri M.A. Qadeer, the
learned counsel for the plaintiff-petitioner
and Sri T.A. Khan, the learned counsel
for· the defendant-respondent.

2. A written statement was filed by
the defendant on 3.10.2002. Thereafter,
the defendant filed an application on
2.8.2004 praying for an amendment of the
written statement and to bring on record a
counter claim. This application was
opposed by the plaintiff. The trial court by
an order dated 10.9.2004 allowed the
amendment of the written statement
permitting the defendant to incorporate
the counter claim in his written statement.
A revision was filed by .the plaintiff
which was rejected by an order dated
24.3.2005.
Consequently,
the
writ
petition.

3. The learned counsel for the
petitioner submitted· that in view of the
mandatory provision of. Order 8 Rule 6-A
of the C.P.C., the amendment could not
be allowed, inasmuch as, the counter
claim, if any, could be filed where the
cause of action accrues· to the defendant
against the plaintiff either before or after
the filing of the suit but before the
defendant had delivered his defence. It
was urged that the written statement was
filed on 3.10.2002 and in the application
for amendment, the cause of action, as
alleged by the defendant arose on
31.7.2004, therefore, the cause of action
accrued after the filing of the written
statement which cannot be permitted
under Order 8 Rule 6-A.

4. The submission of the learned
counsel for the petitioner appears to be
correct. Order 8, Rule 6-A of the C.P.C.
provides as under:-

"6-A.
Counter-claim
by
defendant.-(l) A defendant in a suit may,
in addition to his right of pleading a setoff under Rule 6, set up, by way of
counter claim against the claim of the
plaintiff, any right or claim in respect of a
cause of action accruing to the defendant
against the plaintiff either before or after
the filing of the suit but before the·
defendant has delivered his defence or
before the time limited for delivering his
defence has expired, ,whether such
counter claim is in the nature of a claim
for damages or not;
Provided that such counter-claim
shall not exceed the pecuniary limits of
the jurisdiction of the Court.
(2) Such counter-claim shall have the
same effect as a cross-suit so as to enable
the Court to pronounce a final judgment
in the same suit, both on the original
claim and on the counter-claim.
(3) The plaintiff shall be at liberty to
file a written statement in answer to the
counter-claim of the defendant within
such period as may be fixed by the Court.
(4) The counter-claim shall be
treated as a p1aintand governed by the
rules applicable to plaints."

5. A perusal of the aforesaid
provision indicates that a counter claim
could be filed where the cause of action
accrued either before or after the filing of
the suit and, in· any case, before the filing
of the written statement. The counter
claim cannot be filed where the cause of
action accrued to the defendants after the
filing of the written statement. In the
present case, the written statement was
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
filed on 3.10.2002 and-the cause of
action, as admitted by the defendant,
accrued on 31.7.2004, i.e., after the filing
of the written statement. Clear1y the said-
counter claim could not be filed in the
present proceedings in view of the
mandatory provision of Order 8 Rule
6Aof the C.P.C.

6. In Jag Mohan Chawla and
another vs. Dera Radha Swani Satsang
and others, A.I.R. 1996 SC 2222 the
Supreme Court held-

"The only limitation is that the cause
of action should arise before the time
fixed for filing the written statement
expires. The defendant may set up a cause
of action which has accrued to him even
after the institution of the suit."

7. In Smt. Shanti Rani Das
Dewanjee vs. Dinesh Chandra Day
(dead) By Lrs., AIR 1997 SC 3985, the
Supreme Court held that the cause of
action should arise before or after the
filing of the suit and such cause of action
should arise before or after the filing of
the suit and such cause of action could
continue upto the date of the filing of the
written statement or extended date of the
filing of the written statement. Similar
view was again reiterated by the Supreme
Court in Mahendra Kumar and another
vs. State of Madhya Pradesh, AIR 1987
SC 1395.

8. In view of the consistent
pronouncement of the Supreme Court on
this issue, the impugned order cannot be
sustained and is quashed. The writ
petition is allowed. The amendment
application
of
the
defendant
is
consequently rejected. Petition Allowed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.10.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Revision No.6049 of 2006

Sitari Begam

 ...Revisionist
Versus
State of U.P. and another...Respondent

Counsel for the Revisionist:
Sri Devendra Saini

Counsel for the Respondent:
A.G.A.

Code
of
Criminal
Procedure-Section
156(3)-Rejection
of
application
by
Magistrate-in where cognizable offence
of gravious nature disclosed-Magistrate
to follow the mandate of law-victim may
not file complaint, for so many reasonsheld-Magistrate
committed
manifest
error of law in not directing the police to
register and investigate the case.

Held: Para 2

The Judicial Magistrate-Ist Saharnpur
without looking into the law laid down
by the Apex Court in state of Haryana
and
others
versus
Bhajan
Lal
and
others;1992 SCC (Criminal) 426 and in
other similar judgments of the Apex
Court has passed the impugned order on
16/10/2006 in the said Misc. Application
No. 54 of 2006, under Section 156(3)
Cr.P.C. filed by the revisionist Sitari
Begam, which cannot be sustained and is
hereby
set
aside.

The
matter
is
recommended back to him decide the
application afresh in accordance with
law.
Case law discussed:
1992 SCC (Criminal)-426