Kimberley Pereira vs Mario Pereira
2011 Latest Caselaw 186 Bom

                                               * 1 *                       WP- 8486-2011
                                                                             8 Dec, 2011

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION




                                                                                    
                       WRIT PETITION NO. 8486 OF 2011




                                                            
    Kimberley Pereira                                          ....Petitioner
          : V/S. :




                                                           
    Mario Pereira                                              ....Respondent


                                    * * * *
    Mr. Ramesh Lalwani, Advocate for the petitioner.




                                                
    Mr. Ralston Fernandes, Advocate for the respondent.
                                 
                                           * * * *
                                
                              CORAM :- SMT. R.P. SONDURBALDOTA, J.

8 DECEMBER, 2011.

JUDGMENT :-

1. Rule. Rule made returnable forthwith. By consent of the parties,

the petition is taken up for hearing immediately.

2. The order of the Family Court impugned in this writ petition rejects

the application of the petitioner-wife to amend her written statement for

including counter-claim therein. The application had been filed more

than two years after filing of the written statement. The respondent-

husband had opposed it on the grounds of i) delay, ii) it being barred by

0rder 8, Rule 6A Code of Civil Procedure and iii) it being unnecessary for

the purpose of determining the real controversy between the parties. The

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Family Court rejected the application holding that it was not made

within time and that it gave rise to a new cause of action. The Court was

of the opinion that serious prejudice would be caused to the respondent-

husband if the proposed amendments were allowed.

3. The parties profess Christian religion. The respondent has filed

petition for divorce under Section 10(1)(ix) and (x) of the Indian Divorce

Act. The petitioner filed her written statement on 21st December, 2006.

Thereafter, on 8th April, 2009 she filed the application at Exhibit-21 for

amendment of the written statement to include counter claim therein.

By way of counter-claim, she proposed to seek divorce under the same

grounds i.e. the grounds provided under Section 10(1) (ix) and (x) of the

Indian Divorce Act and for possession of the flat standing in her name.

She also seeks an injunction to restrain the respondent-husband from

creating third party interest in the flat in question.

4. The petitioner is an employee of the Indian Airlines and as such is a

member of Sea View Co-operative Housing Society Limited, Malwani,

Marve Road, Malad (West) formed by the employees of Indian Airlines in

respect of Flat No.1 on the ground floor of the society building. She

contended in her application that during the counseling session in the

Family Court, she learnt that the respondent has started residing in the

flat at Malad without her knowledge and consent. When her repeated

requests to him to vacate the flat fell on deaf ears, she apprehended that

* 3 * WP- 8486-2011 8 Dec, 2011

he may dispose off the flat to cause irreparable loss to her. She therefore

sought to file counter-claim seeking direction to him to vacate the flat at

Malad and also for a permanent injunction to restrain him from creating

any third party rights over the same.

5. Mr. Lalwani, the learned counsel for the petitioner submits that the

impugned order is not only harsh and unreasonable, but also contrary to

well settled principles with regard to amendment of pleadings. He

submits that since the Family Court has jurisdiction to decide the

disputes relating to the properties of the parties to the marriage or either

of them, rejection of the application would lead to multiplicity of the

proceedings as the petitioner would be required to file a separate

proceeding to claim the said reliefs.

6. Per contra, Mr. Fernandes, the learned counsel for the respondent,

at the outset, objects to the maintainability of the petition, submitting

that no writ petition can be filed under Article 227 of the Constitution of

India. According to him the present petition termed as "writ petition"

filed under Article 227 of the Constitution of India, is not maintainable.

To support his submission, Mr. Fernandes relies upon unreported

decision of the Apex Court dated 23rd July, 2010 in Civil Appeal No. 5896

of 2010, Shalini Shyam Shetty & another V/s. Rajendra Shankar Patil.

Perusal of the present petition and the decision cited by Mr. Ferandes will

show that there can be no substance in the objection to the

* 4 * WP- 8486-2011 8 Dec, 2011

maintainability of the petition and the reliance upon the decision cited is

misplaced. A brief reference to the facts of the proceedings before the

Apex Court will be required for appreciating the argument advanced.

The appellant before the Apex Court was the original defendant in the

suit for eviction filed by the respondent-landlord on the ground of breach

of terms of tenancy, causing damage to the property, and causing

nuisance and annoyance to the landlord and other occupants. The Small

Causes Court, Mumbai decreed the suit directing the appellant to hand

over vacant and peaceful possession of the demised premises to the

landlord. An appeal was preferred against this order. The first appellate

Cort vide its order, partly allowed the appeal. It confirmed the trial

Court's judgment on the ground of causing waste and damage as

contemplated under Section 16(1)(a) of the Maharashtra Rent Control

Act, but, set aside the findings of the trial Court on the grounds of

nuisance and annoyance. The appellant then moved the High Court with

a prayer to issue a writ of certiorari and/or any other writ, order or

command and call for the papers and proceedings from the lower Courts.

The High Court dismissed the writ petition only on the ground that

against the concurrent finding of facts of the Courts below the exercise of

writ jurisdiction is not warranted. The Apex Court noted that the High

Court had not considered the question of maintainability of the petition

before it. It noticed that the petition filed before the High Court was a

* 5 * WP- 8486-2011 8 Dec, 2011

pure and simple writ petition complete with all the features of a writ

petition. It sought writ of certiorari and contained relevant mandatory

averments in the petition. Since the dispute in the petition related to

pure dispute of landlord and tenant i.e. between the private parties, the

petition was held not maintainable.

7. The present petition does not contain any of the features of a "writ

petition". It neither seeks any specific writ nor contains relevant

averments mandatory for a "writ petition". It is only labled as a "writ

petition" in view of the provisions in Rule 2B, Chapater 1 of Bombay High

Court (Appellate Side) Rules 1960 and is in fact an application under

Article 227 Constitution of India.

8. Mr. Fernandes then relies upon the same decision for the scope of

interference by the High Court under Article 227 Constitution of India.

The observations relied upon read as follows :

(e) According to the ratio in Waryam Singh (supra),

followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their

authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

                                                 * 6 *                         WP- 8486-2011
                                                                                8 Dec, 2011

(g) Apart from the situations pointed in (e) and (f), High

Court can interfere in exercise of its power of superintendence when there has been a patent

perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of

natural justice have been floated.

(h) In exercise of its power of superintendence High

Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken

by the tribunals or Courts subordinate to it, is a possible view. In other words, the jurisdiction has to

be very sparingly exercised.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power

can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it

transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory."

There can be no dispute about the above principles laid down for exercise

of it's power of superintendence by the High Court. It is therefore only

required to be seen whether the facts of the present case are covered by

the above principles.

                                                  * 7 *                        WP- 8486-2011
                                                                                8 Dec, 2011

9. The impugned order notes the argument of the respondent that the

counter-claim is barred by limitation but does not consider the same. It

instead holds that the application for amendments, is not within time.

The only discussion on this aspect which is at paragraph 3 of the order

reads as under:

"The respondent has stated that the flat was purchased in 1992 and she learnt during the counseling session of this petition that the petitioner is residing in the said flat though the flat

stands in her name. If it was the case, the respondent should have immediately filed the amendment application. In my

opinion, the proposed amendment is very much belate. (sic) I am well aware that there are catena of judicial decisions that

amendment can be allowed at any stage. However, it must be shown that the proposed amendment is made without inordinate delay..."

Unfortunately the order is seen to contain no reasons for holding that the

application for the proposed amendment is not made within time. The

order does not even mention what was the time within which the

application for amendment ought to have been filed. It does not state

what would be the prejudice caused to the respondent by the delay in

filing the application and by the amendments proposed.

10. Mr. Fernandes, seeks to justify the observations of the Family Court

by submitting that the counter-claim is barred by Order VIII, Rule 6-A,

Code of Civil Procedure. The submission is unacceptable since the

* 8 * WP- 8486-2011 8 Dec, 2011

provision does not provide for limitation for filing counter-claim. The

relevant part of the provision of Order VIII, Rule 6-A reads as follows :

"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"

11. The time or the period prescribed in the provision relates to accrual

of cause of action for the counter-claim. It has nothing to do with the

timing for raising the counter-claim. It provides that the cause of action

for counter-claim must have accrued either prior to filing of the suit or

after filing of the suit, but before either delivery of defence or expiry of

time for delivery of defence by the defendant. Where cause of action to

file counter-claim has so arisen, the counter-claim can be filed even

subsequent to filing of the written statement. Order VIII, Rule 6-A does

not bar filing of counter-claim even after filing a written statement. It is

well established that a counter-claim is in effect a cross-suit and is

required to be decided in the same manner as a suit. It is therefore

undoubtedly subject to a period of limitation. The period of limitation for

* 9 * WP- 8486-2011 8 Dec, 2011

it is prescribed not under Order VIII, Rule 6-A Code of Civil Procedure,

but under Article 113 of the Limitation Act, 1963. Since there is no

period of limitation specifically provided for filing counter-claim in the

schedule to the Limitation Act, it would be governed by the residuary

clause at Article 113. The period provided under Article 113 is of three

years from the date of accrual of the cause of action.

12. The petitioner filed her written statement on 21st December 2006. A

month prior to that i.e. on 21st November 2006 she had filed an

application for interim relief seeking direction to respondent to vacate the

flat in question and to prevent him from creating third party rights over

the flat. A copy of that application is produced before this court by the

respondent. In that application also at paragraph 9, the petitioner has

claimed that she learnt about the occupation of the flat by the respondent

during the counselling session in the court. This would mean that the

cause of action had accrued to the petitioner within the period provided

in Order VIII, Rule 6-A Code of Civil Procedure. She can file counter-

claim at anytime within three years from the date of knowledge. Since the

date of knowledge would be a matter of evidence, the Family Court ought

to have allowed the application and considered the question of limitation

to file counter-claim at trial by framing an issue therefor. The counter-

claim being in the nature of cross-suit, it could have been filed even on

the last date of limitation. The application to file it could not have been

* 10 * WP- 8486-2011 8 Dec, 2011

dismissed on the ground of delay. Such dismissal is gross and manifest

failure of justice.

13. The Family Court has also observed that serious prejudice will

occur to the respondent if proposed amendment is allowed and the

amendment gives rise to a new case. The Family Court lost sight of the

fact that the amendment of the written statement sought was only to

include the counter-claim therein. For entertaining a counter-claim,

question of the same giving rise to a new case does not arise. Similarly

no question of any prejudice being caused to the respondent will arise.

Mr. Lalwani submits that in any case amendment of pleadings can never

cause prejudice or irreparable injury to any party. In support, he relies

upon following observations of the Apex Court in it's decision in Prem

Bakshi vs. Dharam Dev, reported in A.I.R. 2002, Supreme Court 559.

"6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent no.1. It is almost inconceivable how mere amendments of

pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all

amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence, we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to

* 11 * WP- 8486-2011 8 Dec, 2011

any party."

14. The impugned order amounts to grave miscarriage of justice and

cannot be sustained. Hence, Rule is made absolute. The petition is

allowed in terms of prayer clause (a).

[SMT. R.P. SONDURBALDOTA, J]