Kayum vs Mohd.Siddiki And Another
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Allahabad High Court

Kayum vs Mohd.Siddiki And Another on 13 May, 2024

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?A.F.R.
 
Neutral Citation No. - 2024:AHC:85921
 
Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2431 of 2015
 

 
Petitioner :- Kayum
 
Respondent :- Mohd.Siddiki And Another
 
Counsel for Petitioner :- Vishwa Pratap Singh,Narayan Dutt Shukla,Rahul Kumar Singh
 
Counsel for Respondent :- Sushil Kumar Mishra,Hari Prakash Tiwari,Poonam Srivastava
 

 
Hon'ble Ajit Kumar,J.
 

1. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Vishwa Pratap Singh, learned counsel for the petitioner and Sri Hari Prakash Tiwari, learned counsel appearing for the contesting respondent.

2. By means of this petition filed under Article 227 of the Constitution, petitioner has challenged the order passed by the trial court allowing the amendment in the written statement as well as counter-claim incorporated in the amendment application itself, moved on 19.12.2013 after exchange of pleadings initially made between the parties and also after framing of issues that took place on 27.11.2013.

3. The submission advanced by learned Senior Advocate is two-fold: Firstly, all these facts that are sought to be pleaded by way of amendment in the written statement were within the knowledge of the defendant-respondent and thus the respondent could have set up a counter-claim at that very stage while filing the written statement. Hence, he having the knowledge of the same, even the amendment application was barred in view of proviso contained under Order 6 Rule 17 of Civil Procedure Code; and secondly, the counter-claim could not have been accepted as it was made part of the amendment application filed seeking amendment in the written statement. He submits that defendant-respondent should have filed the counter-claim under Order 8 Rule 6A of the Civil Procedure Code independent of any amendment application seeking amendment in the written statement. He argues that counter-claim is also tried like a suit. He has placed reliance upon two judgments of this Court first being Kalam Beg v. District Judge, District Shrawasti & ors 2018 (36) LCD 164 and second being Kamal Kishor Kullar v. IInd Additional Civil Judge (J.D.), Gorakhpur & ors; 2007 (2) ADJ 396.

4. Countering the submissions so advanced, learned counsel appearing for the contesting respondent has submitted that amendment application is nothing but a clarificatory one in respect of what had already been pleaded in paragraph nos. 4, 7, 8, 10 & 12 of the written statement. He submits that right from the beginning the defendant had discarded the claim set up by the plaintiff that some agreement was entered to give permissive possession of the house property admittedly belonging to the defendant-respondent in view of loan advanced of Rs.2,50,000/- for recovery of which the present suit has been instituted. He submits that amendment can be allowed at any stage and further when the amendment is in the nature of a clarificatory pleading then such an amendment can be allowed because the parties are not to lead any additional evidence in respect of the specific plea already taken. He further submits that the counter-claim was not barred by time as the rule of procedure prescribed under Order 8 Rule 6A are to be taken as a handmade rule of justice and should not be so mandatorily construed so as to dislodge a counter-claim if pleaded as a part of amendment application.

5. In rejoinder to the above submissions made by the learned counsel appearing for the defendant-respondent, learned senior Advocate could not dispute that whatever has been pleaded already in the written statement is sought to be clarified by way of certain more paragraphs like 13-ba, 13-sa and 13-da to be added in the already existing pleading in the written statement.

6. Having heard learned counsel for the respective parties and having perused the record, I find that the claim set up is that petitioner-plaintiff came to advance Rs.2,50,000/- at some point of time to the defendant-respondent and it was through his brother that an understanding was reached that as security towards advance, a house property located in Ishapur Newada, will be given in possession to the plaintiff and for that purpose, some sort of written note was so executed on 27.04.2011. These allegations have been made in the plaint to maintain the suit for recovery and to demonstrate that in fact such a loan was advanced.

7. From the relief clause of the paint, it is apparent that suit is confined to the recovery of the amount only. No claim has been set up in the plaint with regard to title in respect of the aforesaid suit even alternatively, of which the plaintiff claims to be in possession.

8. Refuting the allegations so made, particularly about the written document executed between the parties in, paragraph Nos. 4 & 5, a clear denial has been made. In the additional pleas, it has been clearly stated that any such document, if executed, is forged and fraudulent. It is also pleaded in paragraph Nos.6, 7 & 8, if read together, that the plaintiff barged into the house at Ishapur Newada and got some concubine to occupy the same. Written note dated 27.04.2011 has been clearly denied specifically in paragraph No. 12 of the written statement.

9. Now coming to the amendment application by which pleading part of the written statement is sought to be amended, it is just clarificatory that if any such guarantee paper is sought by the plaintiff, it would be in the category of bond which would be enforceable for insufficiency of stamp being in respect of any immovable property and, therefore, this will be taken to be unauthorised possession. This plea at the most would be an alternative plea or even inconsistent would be perrmissible since the document has been denied, plaintiff has to lead evidence to prove the document. The cause of action for amendment has been pleaded in paragraph No.13 to have occurred on 26.07.2011.

10. In my considered view, all these pleadings which are sought to be added in the written statement are nothing but more clarificatory of the pleadings already taken in the written statement. If the unauthorised possession is already pleaded on the part of the plaintiff to the house property of defendant in his written statement, then plaintiff committed some more mischief on 26.07.2011 to disturb the already lying articles of the defendant there and at that stage only the pleadings were sought to be amended to clarify the position and so it cannot be said that it was barred by time.

11. However, insofar as counter-claim, which is part of paragraph 13-da, for giving relief to the defendant-respondent Ka, Kha & Ga are concerned, I do find any substance in the argument advanced by Mr. Singh that this independent claim and it being part of the amendment application, the counter-claim is sought to be maintained under Order 8 Rule 6A cannot be allowed.

12. Vide paragraph 12 of the judgment in the case of Kamal Kishor Kullar (supra), the Court has held thus:

"12. This Court after carefully considering arguments of learned counsel for the parties and materials available on record as well as relevant law is of the view that the Amendment Application by which counter-claim was introduced for a decree of mandatory injunction was barred by time on the date of presentation of Amendment Application and the Courts below erred in law in allowing the counter-claim to be pleaded by amending written statement. The order of the Courts below to that extent is vitiated in law and is liable to be set aside. So far as other amendments are concerned, neither it was challenged by petitioner nor any error of law is apparent on the face of record was brought to the notice of the Court. These are the matters relating to minor amendments in the written statement as defence and the order allowing amendment in written statement was rightly passed. The order to that extent is liable to be maintained. This Court has expressed opinion on the counter-claim allowed to be added through the amendment in the written statement. However in case any counter claim is filed alongwith the written statement, the same may considered in accordance with law."

13. Another Co-ordinate Bench of this Court has very clearly held that while the amendment can be allowed but by way of amendment, the counter-claim sought to be set up under Order 8 Rule 6A cannot be allowed. It should be independent of the pleading of amendment application and in this case I find that amendment part of the amendment application was allowed whereas counter-claim was rejected. Vide paragraphs 3 & 4, the Court has held thus:

"3. Considering the admitted factual position that the cause of action for raising the counter-claim arose subsequent to the filing of the written statement which was filed on 24.08.2013 therefore, considering the settled legal position in this regard vide judgment dated 17.03.2010 passed in Civil Revision No.77 of 2008 (Lodeshwar Shukla v. Additional District Judge, Lko. & ors), 2012 (3) LCD 1003 (Arvind Kumar Gupta & ors v. Additional District Judge); 1987 SCC (3) 265 (Mahendra Kumar & anr v. State of Madhya Pradesh & ors); 1996 SCC (4) 699 (Jagmohan Chawla & anr v. Dera Radha Swami Satsang & ors) as also the provisions contained in Order VIII Rule 6-A C.P.C., the orders of the Court below, insofar as, they allow the counter-claim, cannot be sustained.

4. However, as far as the amendment in the written statement is concerned, in view of the legal position in this regard and the distinction between such amendments in the plaint and written statement as elucidated by the Supreme Court in the case reported in 2006 SCC (6) 698 (Baldev Singh & ors v. Manohar Singh & anr ) (paragraph 15 & 16) and 2007 SCC (5) 602 (Usha Balashaheb Swami & ors v. Kiran Appaso Swami & ors) (paragraphs 19 & 20), amendments proposed vide paragraphs 18(A) and 18(B) sought to be inserted in the written statement are liable to be allowed, subject to relevant issues being framed in this regard for consideration on merits, but the rest of amendments being in the nature of a counter-claim cannot be permitted and the impugned orders to this extent are contrary to law."

14. Looking to the amendment application, I find clearly that there is no independent application filed under Order 8 Rule 6A and therefore, petition deserves to be partly allowed to the extent of amendment application as pleaded contained in paragraph 13-ba, sa & da. The order passed by the trial court is maintained. The counter-claim part contained in paragraph 13-Da vide clause Ka, Kha & Ga are hereby set aside.

15. Since the suit is of the year 2011 and the pleadings have already been exchanged between the parties and necessary amendment has been already incorporated, following directions are issued:

A) The trial court will be framing additional issue within a period of one month of production of certified copy of this order on the basis of amended written statement. Replication to the same may be filed within 15 days thereafter.

B) After the issues are framed, the plaintiff shall conclude his evidence within a further period of two months and the defendants shall cooperate in recording of evidence of plaintiff within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned.

C) After evidence of plaintiff is concluded, the Court will proceed to record evidence of the defendants and defendants shall conclude their evidence within the next two months' time and plaintiff shall cooperate in conclusion of the evidence of the defendants within the time prescribed by this Court without seeking any unnecessary adjournment and every such adjournment should be visited with the cost, as may be assessed reasonable and appropriate by the court concerned; and

D) Soon after the conclusion of evidence by the respective parties to the suit, the trial court shall proceed to decide the suit as expeditiously as possible, preferably within a further period of one year.

16. It is clarified that any observations made hereinabove in this petition is confined to the extent of allowing the amendment application and dealing with the matter of counter-claim and shall have no bearing upon the issues to be decided on merits.

17. With the aforesaid observations and directions, this petition stands partly allowed.

Order Date :- 13.5.2024

P Kesari