Hemraj Agarwal vs Smt. Bharti and Others

Dhirendra Mishra, J.—By this petition under Article 227 of the Constitution of India the petitioner/defendant No. 1 has impugned the order dated 27-4- 2007 passed by learned 7th Civil Judge Class-II, Raipur in Civil Suit No. 110-A/06 whereby learned Civil Judge has rejected the application of the petitioner filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ''Code'') for amending the written statement to incorporate the counter-claim. The parties in this petition shall be referred to hereinafter as per their status before the Trial Court.

Briefly stated facts necessary for the purpose of this petition are that the plaintiffs have filed a civil suit for declaration and perpetual injunction with the averments that they purchased the suit land through registered sale deed on 22-3-2004 and since then their names have been mutated in the revenue record and they are in possession. However, the defendant No. 1 is claiming that he is the owner of suit land and he shall forcibly dispossess the plaintiffs. He also submitted frivolous application before the revenue authorities for getting his name recorded in the revenue record. Defendant No. 1 in his written statement dated 12-9-2005 denied the averments of the plaint and it was claimed that the suit land was purchased by him on 20-3-2005 by paying consideration of Rs. 72,000/- from one Suresh Natthuji. He has also pleaded that by manipulating the revenue records in connivance with the Halka Patwari vendors of the plaintiffs got their names entered into the revenue record. Defendant No. 1 moved an application under Order 6 Rule 17 of the Code and prayed for permission to incorporate following amendments in his written statement:

(i) During the pendency of the suit, defendant No. l''s appeal against the order of mutation in favour of the plaintiff was allowed by the Sub Divisional Officer and accordingly the names of the plaintiffs and other have been deleted from the revenue records and defendant No. 1''s name has been recorded.

(ii) During the pendency of the suit, the plaintiffs have illegally constructed a house over a part of the suit land admeasuring 560 sq. ft. without any information to the Court and accordingly prayed for mandatory injunction for removal of the illegal construction.

Learned Civil Judge by impugned order partly allowed the application for amendment, however, prayer for amendment whereby the defendant No. 1 has prayed for mandatory injunction for removal of illegal construction over the disputed land during pendency of the suit has been rejected with an observation that by the proposed amendment the defendant No. 1 has prayed to set up a counter-claim and therefore, such amendment in the written statement cannot be permitted.

Learned Counsel for the petitioner/defendant No. 1 relying upon the judgment in the matter of Ramesh Chand Ardawatiya Vs. Anil Panjwani, , argued that the counter-claim may be set up by the defendant by amending the written statement already filed with the leave of the Court as the purpose of the provision is to avoid multiplicity of the judicial process and to save upon the Court''s time as also to exclude the inconvenience to the parties so that all the disputes between the same parties may be decided during the course of the same proceeding. Learned Counsel further relying upon the judgment in the matter of Gurbachan Singh Vs. Bhag Singh and others, , argued that 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 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, the defendant in the suit may in addition to, under Rule 6 can also set up by way of counter-claim against the claim of the plaintiff any right or claim in respect of the cause of action accruing to the defendant against the plaintiff. Reliance is also placed in the matter of Baldev Singh and Ors. v. Manohar Singh and Anr. 2007(1) M.P.H.T. 470 : 2007(11) MPLJ 27, and it is argued that amendment of the pleadings should be liberally allowed unless serious injustice or irreparable loss is caused to the other side.

On the other hand, learned Counsel for respondent Nos. 1 and 2/plaintiffs argued that discretion exercised by the Trial Court for accepting or rejecting the application for amendment should not normally be interfered with. During the pendency of this petition, issues have been framed by the Trial Court in the matter and the matter has been fixed for recording of the evidence and if the amendment is allowed at this stage of proceedings, it would cause serious prejudice to the contesting respondents. In a suit for declaration and perpetual injunction of the plaintiff the defendant cannot be permitted to set up a counter-claim whereby mandatory injunction for removal of alleged illegal construction by the plaintiff has been prayed for. Reliance is placed in the matters of Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others, and Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, .

I have heard learned Counsel for the parties.

From perusal of the impugned order it is clear that the application preferred by defendant No. 1 for amendment in the written statement was partly allowed. The amendment whereby defendant No. 1 has prayed for setting-up a counter-claim has been rejected on the ground that counter-claim cannot be set up by amending the written statement under Order 6 Rule 17 of the Code and no other ground has been assigned for rejecting the application. From perusal of the application for amendment it appears that defendant No. 1 has sought the above amendment on the ground that during pendency of the suit the plaintiffs have made illegal construction over a portion of the suit land by encroaching over the land without intimation to the Court and accordingly, for removing the illegal construction prayer of mandatory injunction has been sought to be incorporated in the written statement byway of counter-claim.

In the matter of Ramesh Chandra (supra), in Para 28, it has been held that as per scheme of Order 8 of the Code there are three modes of pleadings or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim, which in the light of Rule 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 Rule 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 Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court. It has been further held that 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 inconvenience to the parties. Where the consequence of permitting a counter-claim by way of amendment or by way of subsequent pleading would prolong the trial, complicate the proceedings or cause delay in progress of the suit, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim.

In the matter of Gurbachan Singh (supra), it has been held that in a suit for injunction, a counter-claim for possession can also be entertained. In the matter of Baldev Singh (supra), the Hon''ble Apex Court has held that amendment of pleadings should be liberally allowed unless serious injustice or irreparable loss is likely to be caused to the other side and the provision gives wide and unfettered discretion to the Court in allowing amendment of the pleadings.

Thus, from the principle of law laid down in the above cited judgments it is manifestly clear that in appropriate cases the defendant may be permitted to set up a counter-claim, even if he has filed the written statement, by permitting him to amend the written statement. However, defendant cannot claim amendment in the written statement to set up a counter-claim as a matter of right and it is the discretion of the Court to permit or refuse the amendment.

In the matter of Ajendraprasadji N. Pande (supra), also it has been held that the amendment should not be permitted at the belated stage when the trial has commenced and when issues have been settled and the case is set down for recording of evidence. In the matter of Usha Balasaheb Swami (supra), it has been held that where the discretion has been exercised by the Trial Court in deciding an application under Order 6 Rule 17 of the Code for amendment, the same should not normally be interfered with by the High Court.

As already noted above, the learned Civil Judge has partly allowed the application for amendment and rejected the counter-claim only on the ground that the counter-claim cannot be set up by way of amending the written statement. In view of the judgment of the Supreme Court in the matter of Ramesh Chand (supra), the reasons assigned by the learned Civil Judge for not allowing the counter-claim is on the face of it is erroneous. At the time of passing of the impugned order the suit was at the initial stage, the matter was posted for consequential amendment, issues were yet to be framed and therefore, it cannot be said that defendant No. 1 has filed the amendment application at the belated stage of suit and the same would occasion undue delay in disposal of the suit. On the contrary by the proposed amendment the defendant No. 1 has pleaded that during the pendency of the suit the plaintiffs have constructed a house over a portion of the suit land by encroaching it and accordingly prayed for removal of the alleged illegal construction. Therefore, in the considered opinion of this Court, if the defendant No. 1/petitioner is permitted to incorporate the above pleadings and permitted to set up the counter-claim, all the issues between the litigating parties with respect to the suit property could be adjudicated in one proceeding and it would not cause any prejudice to the plaintiffs/respondent Nos. 1 and 2 herein.

On the basis of aforesaid analysis, the grounds mentioned in the order dated 27-4-2007 for cancellation of amendment application cannot be sustained and therefore, the impugned order is liable to be set aside.

In the result, the petition is allowed, the impugned order dated 27-4-2007 passed by learned 7th Civil Judge, Class II, Raipur in Civil Suit No. 110-A/06 is hereby set aside and consequently, application for amendment (Annexure P-3) in the written statement (Annexure P-2) is allowed. The defendant No. 1 to carry out the amendment in the written statement on or before the next date of hearing in the Trial Court.

No order as to costs.