Amarjit vs Kamail Singh etc.

Satpal, J.—This petition has been directed against the order dated 14,8.1997 passed by the Civil Judge (SD) Sangrur. By this order, the learned trial court has dismissed the application filed by the petitioner-defendant for amendment of the written statement. It may be noted here that the amendment sought is with regard to the counter-claim of recovery of possession of the suit land. In the impugned order, it has been observed that the evidence of the plaintiff was closed on 20.11.1996 and the defendant has been granted various opportunities including the last opportunity, the present application was filed with intention to delay the case and prolong the case which is already more than four years old. It was also observed that the counter-claim cannot be set up after filing of the written statement. Lastly, it was observed that the amendment sought by the defendant is already covered under issue No. 1 and the defendant shall be at liberty to prove his case in rebuttal evidence.

Mr. Jain, the learned counsel appearing on behalf of the petitioner submits that observation of the learned trial court that the counter-claim cannot be set up after filing the written statement, is contrary to law laid down by the Hon''ble Supreme Court in Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Day (dead) by LRs., 1998 PLR 652 : 1997(4) RCR 222. He, therefore, contends that the impugned order was not sustainable in law.

Mr. Saron, the learned counsel appearing oh behalf of the respondents No. I to 3, however, submits that in the present case suit was filed on 13.7.1993 and after the proceedings of ex-parte against the defendants were set aside, the written statement was filed by the defendant on 16.3.1995. He further submits that the evidence of the plaintiff has already been closed on 20.11.1996 and the present petition has been filed with mala fide intention with a view to delay the proceedings.

After hearing the leaned counsel for the parties and having perused the impugned order, I am of the opinion that no case is made out warranting any interference in the order passed by the learned trial court, by this court in exercise of jurisdiction u/s 115 CPC. It is correct that in terms of the law laid down by the Apex Court in the case of Smt. Shanti Rani Das Dewanjee (supra) the counter-claim can be filed even after the written statement has been filed but in the judgment it was observed by the Apex Court that the counter claim could be filed if the cause of action continued upto the date of filing written statement or extended dale of filing written statement, but counter claim could not be filed if the said claim was ex-facia barred by limitation. In the present case even according to the plea taken by the petitioner the suit property was purchased by them vide sale deeds dated 27.1.1979 and 23.6.1980 and as such prima facie the period of limitation expired in the year 19.91/1992. As staled in the impugned order issue No. 1 is to the effect:

Whether the plaintiffs have become the owners of the suit property by way of adverse possession?

From this, it is clear that in case this issue is answered in favour of the plaintiffs, the petitioner-defendant shall not have any case but in case this issue is answered in favour of the petitioner-defendant, then cause of action may arise in favour the petitioner-defendant to file a suit for possession from that date.

In view of the above discussion petition is dismissed with no order as to costs.