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G.C. Suri v. Captain N.R. Abbot And Others - WRIT - C No. 12665 of 2006 [2006] RD-AH 5384 (7 March 2006)


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                                                                                                               Court No. 23

Civil Misc. Writ Petition No. 12665 of 2006

G.C. Suri Vs. Captain N.R. Abbot & others


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the petitioner.

This petition challenges the order dated 7.2.2006 passed by the revisional court and order dated 31.3.2005 passed by the trial court whereby the amendment application moved under Order VI Rule 17 C.P. has been partly allowed and partly rejected.

The learned counsel contends that in a suit for recovery of arrears of rent, the respondent-plaintiff pleaded that the premises have been vacated by the petitioner and in the written statement filed by the petitioner, it has been pleaded that he has been evicted from the premises by force. This written statement was filed on 18.8.1999 and after five years of such filing of written statement the petitioner moved an application praying for amendment, setting up his counter-claim for restitution of the possession. The learned counsel has, thus, tried to emphasize that such counter-claim should be permitted to be incorporated in the written statement and the courts below have illegally rejected it.

From the facts and circumstances it is found that the written statement was filed by the petitioner way back 18.8.1999  in which no counter claim was preferred. The simple assertion of his dispossession by use of force was made therein. Rule 6-A (1) of Order VIII C.P.C. provides as below:-

"Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim to 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."

In the light of the aforesaid provision a defendant is supposed to set up his counter-claim against the claim of the plaintiff before he has delivered his defence. Obviously this delivery of defence is done by the defendant when he files the written statement before the Court. Filing of any counter-claim thereafter is not contemplated within the Code. The only amendment which can be incorporated for the purposes of such counter-claim is by virtue of Rule 6-B of Order VIII C.P.C. which says that where such defendant seeks to rely upon any ground supporting his rights of counter-claim, he can do it in paragraphs of the written statement. Rule 9 of Order VIII C.P.C. further prohibits subsequent pleading in the written statement by way of counter-claim. Such setting up of counter-claim, therefore, is not contemplated within the law by means of an amendment under Order VI Rule 17 C.P.C. and every thing which is possible to a defendant for the purposes of a counter-claim is within the provisions of Order VIII Rule 6-A C.P.C. only and not beyond that. Therefore, the amendment application setting up counter-claim moved by the petitioner, if has been rejected by the courts below, I do not find any infirmity in such orders and those orders are not challengable in this petition.

The petition, having no force, is hereby dismissed.




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