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HAZARI LAL AND OTHERS versus BRAHMA NAND

High Court of Judicature at Allahabad

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Hazari Lal And Others v. Brahma Nand - WRIT - C No. 52503 of 2006 [2006] RD-AH 21384 (19 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Writ Petition No.52503 of 2006

Hazari Lal and others.       ............... Petitioners.

         (Defendants)

Versus.

Brahma Nand and others. .........Respondents.

            (Plaintiffs)

----------------

Hon'ble Tarun Agarwala, J.

The plaintiff instituted a suit for a permanent prohibitory injunction restraining the defendants from transferring the suit property or from interfering in his right to raise the construction on the basis of an alleged sale deed dated 9.6.05 obtained by the plaintiffs from Sri Ganga Prasad and Bipti Ram. The petitioners are the defendants and filed a joint written statement alleging that the suit property was an Abadi land and that Ganga Prasad and Bipti Ram were neither the owners nor were in possession and further they had no right or title to execute the sale deed dated 9.6.2005. During the pendency of the proceedings, the petitioners moved an application seeking an amendment in the written statement.  By the said written statement, the petitioners sought to raise a counter claim to the effect that the sale deed dated 9.6.2005 should be declared as null and void. The plaintiff filed his objection and the trial court by an order dated 4.5.2006 rejected the application for  the amendment of the written statement on the ground that a counter claim cannot be raised subsequently by means of an amendment application and that a counter claim can only be raised in the original written statement.

Aggrieved, the petitioners filed a revision, which was also dismissed. The Revisional Court held that since the issues had been framed and the plaintiffs had already given his evidence, the counter claim, if allowed, would only prolong the litigation and, therefore the amendment cannot be allowed. The Revisional Court further held that it would be open to the petitioners to file a separate suit seeking a declaration for declaring the sale deed as null and void.  

.2.

It has come on record, that the written statement was filed on 24.10.2005 which contained all the pleas that the sale deed was null and void. The amendment application was filed in March 2006. Admittedly, the limitation for filing a suit seeking a declaration is three years as contemplated under Section 59 and 113 of the Limitation Act.

Heard Shri M.K. Gupta, the learned counsel for the petitioners and Shri Manoj Yadav, the learned counsel for the opposite party.

Order 8 Rule 6-A of C.P.C. permits a defendant to set up a counter claim against the claim of the plaintiff. The said provision reads as under:

"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. Clearly the said counter claim could not be filed in the present proceedings in view of the mandatory provision of Order 8 Rule 6A of the C.P.C.

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."

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  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.

.3.

The finding of the trial court that a counter claim could not be set up  by way of an amendment application is patently erroneous. Order 8 Rule 9 of the C.P.C. provides a complete answer which reads as under:

"Subsequent pleadings.-  No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time required a written statement or additional written statement from any of the parties cut and fix a time of not more than thirty days for presenting the same."

The Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508 has held that a counter claim can be raised and brought on record by a subsequent pleading and that the provision of Order 8 Rule 9 of the C.P.C. does not create a bar. The Supreme Court held-

" Looking to the scheme of O. VIII as amended by Act No.104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter claim in civil suit. Firstly, the written statement filed under R.1 may itself contain a counter claim which in the light of R.1 read with Rule 6-A would be a counter- claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter- claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter-claim though referable to R.6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court either under O.VI R.17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.VIII R. 9 of the C.P.C. if sought to be placed on record by way of subsequent pleading."

 

The  Supreme Court in the aforesaid case, held that the purpose of filing a counter claim was to avoid multiplicity of judicial proceedings. The Supreme Court held-

"The purpose of the provision enabling filing of a counter- claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course

.4.

of the same proceedings. If the consequence of permitting a counter claim either by way of amendment or by way of subsequent pleading could be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim."

In view of the aforesaid, the finding of the trial court that a counter claim cannot be brought on record by a subsequent pleading is patently erroneous and cannot be sustained.

The revisional court has rejected the application of the petitioners on the ground that the Court has already framed the issues and the plaintiff had given his evidence and that if the amendment was allowed it will prolong the litigation. In my opinion, the approach adopted by the Revisional Court was erroneous. The mere fact that the trial court had framed the issues will not shut the doors of the Court in not considering the counter claim of the defendant, especially when all the pleadings had already been made in the written statement. The amendment was only to the effect for seeking a relief of a declaration that the sale deed was null and void. The factual averments had already been pleaded by the defendant in his written statement. The proviso of Order 6 Rule 17 of the C.P.C. is a clear answer which provides as under:-

"  Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."  

From a perusal of the aforesaid, it is clear that the court has the power to allow an amendment  even after the trial had commenced , therefore the revisional  court was not justified in rejecting the application of the petitioner on the sole ground that the issues had been  framed and that the trial had begun.

.5.

In so far as the evidence of the plaintiff is concerned, the finding that the plaintiff had already given his evidence gives a different picture in the first flush and apparently justifies the Court in rejecting the application for a counter claim. However, on a closer  look,  it transpires that the plaintiff had only given his evidence in examination in chief and, that too, on an affidavit. The plaintiff is yet to be called for the cross examination. Consequently, the counter claim will not prejudice the plaintiff nor his evidence would be disturbed. The plaintiff is still to appear in the witness box for the cross examination where he could be given the liberty to lead evidence on the question of the sale deed. In any case, it is always open to the plaintiff to appear again in the witness box.

Admittedly, the petitioner can file a separate suit seeking a relief for the cancellation of the sale deed or for a declaration to declare the sale deed as null and void inasmuch as if the suit is filed today it would be within the period of limitation.

The  Supreme Court in Ramesh Chand Ardawatiya case (supra) has held that the purpose of the provision of filing a counter claim was to avoid multiplicity of the judicial proceedings and to decide all disputes between the same parties in the same proceedings.

The Supreme Court in Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others, 2006(4) SCC 385 held-

" We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit."      

The Supreme Court in Pradeep  Singhvi and another Vs. Heero Dhankani and others, 2004(13) SCC 432 held  that if prejudice was not being caused to the plaintiffs, at the most, the plaintiffs could be re-examined and that the trial court was not justified in refusing the prayer for the amendment of the written statement .    

.6.

The Supreme Court in Sajjan Kumar Vs. Ram Kishan, 2005(13) SCC 89 held that if the proposed amendment was necessary for the purposes of bringing to the fore the real question in  controversy between the parties, the amendment should be allowed and the refusal to permit the amendment would create needless complications at the stage of the execution of the suit.

In view of the aforesaid, this Court of the opinion that no prejudice is being caused to the plaintiff. The order of the trial court as well as of the Revisional Court rejecting the application of the petitioners for the amendment of the written statement to bring on record the counter claim  was manifestly erroneous in law, and therefore,  cannot be sustained and are quashed. The writ petition is allowed. The application of the petitioners for the amendment of the written statement is also allowed subject to payment of cost of R.5,000/- which shall be deposited by the defendants, by means of a bank draft, in favour of the plaintiff within four weeks from the date of the presentation of a certified copy of this order. The amount so deposited can be withdrawn by the plaintiff.

Dt:19.12.2006

SFH


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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