Pramod And 4 Ors. vs Nawab Singh And 2 Ors.

Ram Surat Ram (Maurya), J.—Heard Sri Sumit Daga for the petitioners and Sri Vijay Kumar Dwivedi for the caveator.

This petition has been filed for setting aside the orders of Civil Judge (Junior Division), Hawali, Aligarh dated 3.4.2015 by which application of the petitioner for amendment of written statement and set up counter claim has been rejected and the order of Additional District Judge dated 27.2.2016 dismissing the revision of the petitioner against the aforesaid order.

The suit was filed on 3.7.2001. The petitioners appeared in the suit and filed written statement on 17.2.2004. Thereafter the petitioners filed an application for amendment of written statement on 7.1.2015 for setting up counter claim. In the proposed amendment cause of action is said to have arisen on 24.11.2014 while the written statement in suit has already filed 17.2.2004. The courts below has held that as the cause of action arose subsequent to the filing of written statement, it cannot be raised by way of amendment setting up counter claim in the written statement. Hence, this petition has been filed.

The counsel for the petitioners relying upon the judgment of Supreme Court in Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Day (Dead) by Lrs., (1997) 8 SCC 174, as well as Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 and of this Court in Hazari Lal and others v. Brahma Nand and others, 2007 (1) ADJ, 497 argued that in these the Supreme Court has allowed application for amendment of written statement. In case written statement can be permitted to be amended, there is no bar for setting up of counter claim by way of amendment in the written statement. The impugned orders of the courts below are illegal and liable to be set aside.

I have considered the arguments of the counsel for the petitioners and examined the record. Order 8, Rule 6A C.P.C. is quoted below: -

6A. 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 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 plaint and governed by the rules applicable to plaints.

A reading of the aforesaid provision shows that counter claim has to be set up in respect of cause of action against plaintiff either before or after the filing of suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. In this case defence has already been delivered on 17.2.2004, while cause of action as set up in counter claim has arisen on 24.11.2014. Thus, cause of action does not arise before filing written statement and counter claim set up by way of amendment cannot be made in view of Supreme Court decision in Ramesh Chandra Ardawatiya (supra) in which in paragraph 26, in which it has been held that the Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly

In this case, written statement has already been filed, therefore, there was no question of permitting to set up counter claim by way of amendment in written statement. The case laws relied by the counsel for the petitioner have no application in this case. The petition has no merit and it is dismissed.