HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- CIVIL REVISION No. - 392 of 2015 Revisionist :- M/S Narendra Road Lines Pvt. Ltd. Opposite Party :- Rashtriya Ispat Nigam Limited Counsel for Revisionist :- Anil Kumar Pandey Hon'ble Surya Prakash Kesarwani,J.
1. Heard Shri Anil Kumar Pandey, learned counsel for the defendant-revisionist.
2. Learned counsel for the defendant-revisionist submits that his application has been rejected by the impugned order dated 10.9.2015 by the court of Additional District Judge, Court No.18, Agra on the ground that application for counter claim under the facts and circumstances of the case, is barred by Order 8 Rule 6-A of C.P.C. and the said application was belatedly filed after five years of filing of the written statement. He submits that in view of the law settled by the Hon'ble Supreme Court in the case of Baldev Singh and others vs. Manohar Singh and another, 2006 (6) SCC 498 (Paras 8 and 12), the amendment application filed by the defendant-revisionist under Order 6 Rule 17 read with Order 8 Rule 6-A of C.P.C. should have been liberally considered and it should have been allowed. He further submits that Order 8 Rule 6-A of C.P.C. provides for counter-claim to be filed before delivery of defence, has been misinterpreted by the trial court by observing that the counter-claim should have been filed before filing of the written statement or before framing of the issues. He further submits that the said finding of the trial court is unsustainable in view of the law laid down by Hon'ble Apex Court in the case of Rohit Singh and others vs. State of Bihar (now state of Jharkhand) and others, 2006 (12) SCC 734 as under:
"18. After this, the witnesses of the plaintiff were recalled and permitted to be cross-examined by these defendants. That was on 5.10.1996. Again the witnesses for defendants 1 and 2, were recalled and they were permitted to be cross- examined on behalf of these defendants. The evidence on the side of defendants 3 to 17 was let in. It commenced on 24.2.1997 and was closed on 30.1.1997. Thereafter arguments were heard again and the arguments on the side of the defendants including that of defendants 3 to 17 were concluded on 4.3.1997. The suit was adjourned for arguments on the side of the plaintiff. On 5.3.1997, the suit was dismissed for default of the plaintiff. It was then restored on 29.5.1998. It was thereafter on 5.6.1998, that defendants 3 to 17 filed an application for amending the written statement. The amendment was allowed on 20.7.1998. There was no order treating the amended written statement as a counter-claim or directing either the plaintiff or defendants 1 and 2 to file a written statement or an answer thereto. Defendants 3 to 17 had questioned the pecuniary jurisdiction of the trial court in their written statement. That plea was permitted to be withdrawn on 4.2.1999. It is clear that after the evidence was closed, there was no occasion for impleading the interveners. Even assuming that they were properly impleaded, after they had filed their written statement, the suit had gone for further trial and further evidence including that of the interveners had been taken, the evidence again closed and even arguments on the side of the interveners had been concluded. The suit itself was dismissed for default only because on behalf of the plaintiff there was a failure to address arguments. But the suit was subsequently restored. At that stage no counter-claim could be entertained at the instance of the interveners. A counter-claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counter-claim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so called counter-claim of defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the counter- claim so called, filed by defendants 3 to 17 has to be held to be not maintainable.
21. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court.
22. The observations of this Court in Ramesh Chand Ardawatiya (Supra) that:
"28.Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading 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 counterclaim 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."
are of no avail to defendants 3 to 17 on the facts and in the circumstances of this case. In the reported decision, this Court did not have to consider whether a counter-claim can be filed after the trial is concluded and whether it could be solely directed against a co-defendant. The Court was also not dealing with an inchoate counter-claim in that case.
3. Further submission of the learned counsel for the defendant-revisionist is that the agreement between the plaintiff and the respondent contains an arbitration clause, and as such, plaint itself was liable to be rejected under Order 7 Rule 11 of C.P.C. The application of the defendant-revisionist under order 7 rule 11 of C.P.C. was wrongly rejected by the trial court vide order dated 28.7.2010. He further submits that after rejection of his application, the defendant-revisionist filed an application under Order 6 Rule 17 of C.P.C. read with Order 8 Rule 6-A of C.P.C., and thus, the application cannot be said to be a belated one.
4. I have carefully considered the submissions taken by the learned counsel for the defendant-revisionist and perused the record.
5. Briefly stated the facts of the present case are that the defendant-revisionist is a transporter and has entered into an agreement with the plaintiff for transportation of goods. In para 22 of the written statement, it is stated that the goods entrusted to the defendant as a carrier by the plaintiff could not be delivered as instructed, on account of criminal act of certain unknown criminals and a First Information Report was lodged on 26.12.2002 with the Police Station-Sadar Palwal Haryana. It appears that the plaintiff insisted the defendant to pay the cost of goods in terms of the agreement, and thereupon, the defendant-revisionist send a letter dated 11.2.2003 to the plaintiff intimating that the goods have lost and are not traceable, and as such, the plaintiff may recover the costs of goods from his transportation bills. It has been observed by the court below in the order dated 28.7.2010 that the said stand taken by the defendant-revisionist has been accepted in clause 9 of the written statement filed on 13.4.2006. The issues were framed on 1.8.2006.
6. In his letter dated 11.2.2003, as undisputedly observed in the order dated 28.7.2010; the defendant-revisionist under took to pay the cost of goods but insisted that the same be deducted from his transportation bills and his bank guarantee be not encashed. He further stated that he is ready to pay every rupee of the plaintiff. On these facts, the application of the defendant-revisionist under Order 7 Rule 11 of C.P.C. was rejected by the court below vide order dated 28.7.2010 and the Original Suit No.58 of 2006 filed by the plaintiff was directed to be listed for final hearing, which order has been accepted by the defendant-revisionist.
7. Thereafter on 21.11.2011, the defendant-revisionist filed an application under Order 6 Rule 17 of C.P.C. for setting up the counter-claim. The only reasons given in the said application for filing the said application was that after knowing the correct legal position he send a notice dated 26.7.2011 to the plaintiff but the plaintiff instead of complying with the said notice, gave a wrong reply on 2.8.2011, and therefore, the counter-claim in the suit is being filed.
8. The aforesaid amendment application under Order 6 Rule 17 of C.P.C. dated 21.11.2011 was rejected by the court below by the impugned order dated 10.9.2015. Aggrieved with this order, the defendant-revisionist has filed the present revision.
9. By the impugned order, the application of the defendant-revisionist under Order 6 Rule of 17 read with Order 8 Rule 6-A of C.P.C. has been rejected on the ground that the counter-claim has been filed by means of amendment after five years of filing of the written statement and framing of the issues and the application is barred by under Order 8 Rule 6-A of C.P.C. Findings have further been recorded that the defendant-revisionist has not disclosed sufficient cause for the delay in filing the application and that the allegations sought to be added by amendment were well within the knowledge of the defendant-revisionist at the time of filing of the written statement and if the amendment application is allowed, it shall cause serious prejudice to the plaintiff. Thus, the application was rejected as not maintainable.
10. The defendant-revisionist has not disputed the facts as stated in his letter dated 11.2.2003. The only reasons for filing the amendment application at a belated stage for setting up counter-claim as stated by the defendant-revisionist is that after knowing the correct legal position, he send a notice dated 26.7.2011 to the plaintiff, and thereafter, the counter-claim has been filed.
11. Before I proceed to examine further the facts on the strength of the relevant provisions and two judgements relied by the defendant-revisionist, it would be appropriate to reproduce the provisions of Order 6 Rule 17 and Order 8 Rule 6-A of C.P.C., which reads as under:
Order 6 Rule 17: Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Order 8 Rule 6-A: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 b e treated as a plaint and governed by the rules applicable to plaints.
12. It is true that courts should be liberal in granting the prayer for amending of pleadings unless serous injustice or irreparable loss is caused to the other side as held by Hon'ble Supreme Court in the case of Baldev Singh (supra). The first part of Order 6 Rule 17 of the C.P.C. provides that the court may at any stage of the proceedings allow either party to amend his pleadings subject to the condition in the second part that such amendment shall be made for the purpose of determining the real controversies raised between the parties and the amendment of pleadings may be allowed in such manner and on such terms as may appear to the Court to be just and proper.
13. Order 8 Rule 6-A permits the defendant in a suit, in addition to his right of pleading a set-off under Rule 6, set-up, byway 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 and such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgement in the same suit, both on the original claim and on the counter-claim.
14. In the case of Rohit Singh (supra) the Hon'ble Supreme Court observed that no doubt, a counter-claim may be filed even after the written statement is filed, but that does not mean that a counter-claim can be raised after issues are framed and the evidence is closed. The Hon'ble Supreme Court further observed that entertaining of the so called counter-claim of defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. In the present set of facts, not only the application for amendment and counter-claim was filed by the defendant-revisionist after five years of framing of the issues but also only explanation give for such a long delay was that after he knew the correct legal position, a notice was given and the applications were filed. Thus, even no proper explanation was offered for such a long delay in filing the amendment application and for setting-up counter-claim. The argument, which has been raised before this Court that the suit was barred by arbitration clause is also wholly misconceived in view of the admitted facts, as noted above, and also in view of the fact that the application for rejection of the plaint on the same set of facts and ground was rejected by the trial court vide order dated 28.7.2010, which was accepted by the defendant-revisionist. The defendant-revisionist, although denied his liability in the written statement to pay the amount claimed by the plaintiff-respondent, but no counter-claim was set-up.
15. In the case of Ramesh Chand Ardawatiya vs Anil Panjwani, 2003 (VII) SCC 350, the Hon'ble Supreme Court as held as under:
24. Order 8 CPC deals with ''written statement, set-off and counter-claim''. We would like to state, by way of clarification, that the provisions of CPC which are being considered herein are as amended by Act 104 of 1976 only, (excluding from consideration the amendments incorporated by Act 46 of 1999 with effect from 1.7.2002). According to Rule 1 of Order 8 the defendant shall, at or before the first hearing or within such time as the Court may permit, present a Written Statement of his defence. Under Rule 2 the defendant must raise by his pleadings inter alia all matters which show the suit not to be maintainable and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise. Under Rule 6 the defendant may at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off subject to certain limitations. Rules 6A, 6B and 6C (introduced by the Amendment Act, 1976) read as under:-
"6-A. (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 counterclaim 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 filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not;
Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counterclaim 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 counterclaim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.
(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.
6-B. Where any defendant seeks to rely upon any ground as supporting a right of counterclaim, he shall, in his written statement, state specifically that he does so by way of counterclaim.
6-C. Where a defendant sets up a counterclaim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit."
(emphasis supplied)
25. Under Rule 8 any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off or counter-claim may be raised by the defendant or plaintiff, as the case may be, in his written statement. Under Rule 9 no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
26. A perusal of the abovesaid provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of Rule 6A are-
"A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6,.....before the defendant has delivered or before the time limited for delivering his defence has expired".
These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired can neither the written statement be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6A must find its place in the written statement. 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 but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defended, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time.
27. We have already noticed that the defendant was being proceeded ex-parte. His application for setting aside the ex-parte proceedings was rejected by the Trial Court as also by the High Court in revision. In Sangram Singh v. Election Tribunal, Kotah-, this Court held that in spite of the suit having been proceeded ex-parte the defendant has a right to appear at any subsequent stage of the proceedings and to participate in the subsequent hearings from the time of his appearance. If he wishes to be relegated to the position which he would have occupied had he appeared during those proceedings which have been held ex-parte, he is obliged to show good cause for his previous non-appearance. It was clearly held that unless good cause is shown and the defendant relegated to the position backwards by setting aside the proceedings held ex-parte, he cannot put in a written statement. If the case is one in which the Court considers that a written statement should have been put in and yet was not done, the defendant is condemned to suffer the consequence entailed under Order 8 Rule 10. The view taken in Sangram Singh by a two-Judges Bench was reiterated and re-affirmed by a three-Judges Bench in Arjun Singh V. Mohinder Kumar and Ors.-. Certain observations made by this Court in Laxmidas Dayabhai Kabrawala v. Nandbhai Chunilal Kabrawala are apposite. It was held that a right to make a counter-claim is statutory and a counter-claim is not admissible in a case which is admittedly not within the statutory provisions. The crucial date for the purpose of determining when the counter-claim can be said to have been filed and pleaded as on a par with a plaint in a cross suit is the date on which the written statement containing the counter-claim is filed. Save in exceptional cases a counter-claim may not be permitted to be incorporated by way of amendment under Order 6 Rule 17 of the CPC.
28. Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading 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, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order 8 Rule 9 CPC if sought to be placed on record by way of subsequent pleading. The 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 the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of ''subsequent pleading'' as there is no ''previous pleading'' on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right to filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim.
29. The purpose of the defendant which was sought to be achieved by moving the application dated 2.5.1995 under Order 8 Rule 6-A CPC was clearly mala fide and an attempt to reopen the proceedings, including that part too as had stood concluded against him consequent upon rejection of his application under Order 9 Rule 7 CPC. Fortunately, the Trial Court did not fall into the defendant's trap. If only the Trial Court would have fallen into the error of entertaining the counter-claim the defendant would have succeeded in indirectly achieving the reopening of the trial in which effort, when made directly, he had already failed. There being no written statement of the defendant available on record and the right of the defendant to file the written statement having been closed, finally and conclusively, he could not have filed a counter-claim.
(Emphasis supplied by me)
16. In the case of Bollepanda P. Poonacha & Anr vs K.M. Madapa, 2008 (XIII) SCC 179, the Hon'ble Supreme Court considered the effect of the amendment in C.P.C. and the provisions of under Order 8 Rule 6-A and held as under:
9. Order 8 Rule 6-A of the Code of Civil Procedure reads as under :
6-A. Counterclaim 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 counterclaim is in the nature of a claim for damages or not: (Emphasis supplied)
10. Order 6 Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the proviso appended thereto (which is not applicable in the instant case), such applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an application for amendment of plaint. Order 8 Rule 9 again, subject to the statutory interdict enables a defendant to file additional pleadings.
11. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counter claim is an additional right. It may be filed in respect of any right or claim, the cause of action therefore, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The respondent in his application for amendment of written statement categorically raised the plea that the appellants had trespassed on the lands in question in the summer of 1998. Cause of action for filing the counter claim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of Sri Ryaz Ahmed is based on the decision of this Court in Baldev Singh v. Manohar Singh1.
12. Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed. In that case, the proposed amendment by the defendant was allowed to be filed as he wanted to make a counterclaim by way of a decree for grant of mandatory injunction to remove the built-up area on the disputed portion of land. It was therein held that instead of driving the defendant to file a separate suit therefor, it was more appropriate to allow the counterclaim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counterclaim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed.
13. Baldev Singh1 is not an authority for the proposition that the Court while allowing an application for amendment will permit the defendant to raise a counter claim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6-A. Some of the decisions of this Court in no uncertain terms held it to be impermissible. See Mahendra Kumar Vs. State of Madhya Pradesh2 and Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day3 .
14. In Gurbachan Singh Vs. Bhag Singh4, this Court clearly held: (SCC P.771, para 3) "3... the limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damages or not."
15. A belated counter claim must be discouraged by this Court. See Ramesh Chand Vs. Anil Panjwani5. We are, however, not unmindful of the decisions of this Court where a defendant has been allowed to amend his written statement so as to enable him to elaborate his defence or to take additional pleas in support of his case. The Court in such matters has a wide discretion. It must, however, subserve the ultimate cause of justice. It may be true that further litigation should be endeavoured to be avoided. It may also be true that joinder of several causes of action in a suit is permissible. 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 & Ors. Vs. Pioneer Builders6 and Steel Authority of India Ltd. Vs. Union of India7 and Himmat Singh Vs. I.C.I. India Ltd8.
16. We, for the reasons stated herein before, are of the opinion that the learned Civil Judge was not correct in allowing the application for amendment of the written statement.
17. Even prior to coming into force of the Code of Civil Procedure (Amendment) Act, 1976, the Court could treat a counter claim or a cross-suit.
19. Parliament, however, has placed an embargo while giving effect to the decision of this Court in inserting Order 8 Rule 6-A of the Code of Civil Procedure. While there exists a statutory bar, the Court's jurisdiction cannot be exercised.
(Emphasis supplied by me)
17. Thus, applying the amended provisions of C.P.C. on the facts of the present case, this Court finds that the application of the defendant-revisionist was lawfully rejected by the trial court by the impugned order inasmuch as the said application was filed by the defendant-revisionist with respect to the alleged cause of action, which arose prior to the filing of the suit. The written statement was filed on 13.4.2006 in which no counter-claim was set-up. The issues were framed on 1.8.2006. The application under Order 7 Rule 11 of C.P.C. filed by the defendant-revisionist was rejected by the court below on 28.7.2010, which order was accepted by the defendant-revisionist. Thereafter the application under Order 6 Rule 17 of C.P.C. for amendment and for setting up counter claim under Order 8 Rule 6-A of C.P.C. was filed on 21.11.2011. Thus, the applications were filed by the defendant-revisionist much belatedly and the same were contrary to the statutory mandate in the aforesaid provisions itself enacted by the parliament. The law on this point has been authoritatively laid down by the Hon'ble Supreme Court in the cases of Ramesh Chand Ardawatiya (supra) and Bollepanda P. Poonacha & Anr (supra).
18. In view of the above discussion, I find no merit in the present revision. Consequently, the revision is dismissed.
Order Date :- 23.11.2015 Ajeet (Surya Prakash Kesarwani,J)