HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 18521 of 2011 Petitioner :- Banwari Lal Respondent :- Madan Gopal And Another Petitioner Counsel :- Smt. Rama Goel Bansal Hon'ble Rajes Kumar,J.
The petitioner is a plaintiff in the suit, filed an application for permanent injunction restraining the defendants not to interfere in the peaceful possession of the plaintiff in the property in dispute. Both, plaintiff and defendant are brothers. The suit was filed on 18.2.1998. The written statement was filed on 23.4.1998. Thereafter an amendment application was moved on 19.5.2005 after more than seven years of filing of the suit and the written statement claiming counter claim. The said application has been rejected by the trial court apart from other ground that it is barred by limitation.
Learned counsel for the petitioner submitted that under Order 8 Rule 6A of the Code of Civil Procedure, the counter claim can be filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired and since in the present case the written statement has been filed on 23.4.1998, it was not open to the defendant to file counter-claim after expiry of more than seven years. It is submitted that no proper reason has been given for the delay in filing the counter-claim.
The matter requires consideration.
Issue notice to respondent nos. 1 and 2, returnable at an early date. The petitioner may take steps to serve the respondents within two weeks.
List in the week commencing 9.5.2011.
Till the next date of listing, the further proceeding in Suit No. 54 of 1998 (Banwari Lal Vs. Madan Gopal and another), pending in the court of Civil Judge (Senior Division), Jhansi shall remain stayed.
Order Date :- 31.3.2011 OP