Smt. Mamta Mishra vs Virendra Kumar Sharma and Another

Bharati Sapru, J.—Heard learned Counsel for the revisionist as well as learned Counsel for the Respondents.

This revision has been filed by the Plaintiff-revisionist against an order passed by the court below dated 5.12.2009 by which the court below has allowed the counter claim filed by the Defendant-Respondents.

The facts of the case are that the Plaintiff-applicant filed suit No. 1614 of 2006 by which it claimed the relief of injunction against the Defendant-Respondents regarding possession of house No. 127/17, W-1, Block, Saket Nagar, District Kanpur Nagar.

On 16.4.2007 the Defendants filed their written statement and in paragraph 20 of the written statement it was alleged by the Defendant that on 2.3.2007 the Plaintiff took forcible possession from the Defendants who had been in possession. After the filing of the written statement the Defendant-Respondents filed an application for making an amendment in the written statement on 22.4.2008 by which they sought various amendments in the written statement and also set up a counter claim in the written statement by which they sought the relief of restoration of possession from the Plaintiff-revisionist.

The Plaintiff-revisionist filed his objections against the said amendment. The amendment application was allowed by the court below by its order dated 5.12.2009. The learned Counsel for the revisionist has vehemently argued that the counter claim made by the Defendant-Respondent No. 1 by way of an amendment after the filing of the written statement and after putting up their evidence could not have been allowed by the court below as the same was barred by the provisions of Order 8 Rule 6-A of the Code of CPC which is quoted herein 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.

Learned Counsel for the revisionist has relied on a decision of the Apex Court in Bollepanda P. Poonacha and Anr. v. K.M. Madapa and Anr. 2008 (71) ALR 899. He places a specific reliance on the contents of paragraph 19 of the said judgment which are quoted herein below:

The Court, must, however, exercise the discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of serious injustice or irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings are not available as a matter of right under all circumstances. One cause of action, cannot be allowed to be substituted by another. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away. See State of A.P. and Others Vs. Pioneer Builders, A.P., and Steel Authority of India Ltd. Vs. Union of India (UOI) and Others, and Himmat Singh and Others Vs. I.C.I. India Ltd. and Others,

Learned Counsel argued that if the contents of paragraph 20 of the original written statement are read with the contents of the counter claim set up by letter/application dated 24.2.2008, it becomes abundantly clear that in fact the cause of action itself has been sought to be changed by the Defendant-Respondents and this is clearly barred under Order 8 Rule 6A.

Learned Counsel for the Respondents on the other hand argues that the provisions of Order 6 Rule 17 are wide and the court in its discretion may in the interest of justice allow such an amendment to be made which would carry out for the purposes of ultimate justice.

I have heard learned Counsel for the parties and I have also perused the application/counter claims made by the Defendant-Respondents.

The admitted position is that the written statement had been filed by the Defendant-Respondents on 16.4.2007 and thereafter a whole year had been passed and then the Defendant-Respondents has set up a counter claim in which they claimed that possession should be restored to them. The claim for restoration of possession to the Defendants was in fact a fresh cause of action and thus, the learned Counsel for the revisionist has rightly contended that this could not have been done by virtue of the provisions of Order 8 Rule 6A. It would be open to the Defendant-Respondents to avail such other remedies which are available to him but the court below has made a mistake in allowing the counter claim after the filing of the defence.

This Court is of the view that the contention as made by the learned Counsel for the revisionist has substances and, therefore. are liable to be accepted by this Court.

The order dated 5.12.2009 passed by the court below is set aside. Henceforth the suit shall proceed in accordance with law.

The revision is allowed.