Goderj Soaps Ltd. vs New India Chemicals (Regd.)
1993 Latest Caselaw 399 Del

JUDGMENT

Mahainder Narain, J.

(1) By the applicationl.A.No.8316of 1992, the defendant seeks amendment of the written statement by incorporating certain pleas which amount to counter-claim. The court fee is stated to have been paid on the counter-claim which is proposed by way of amendment.

(2) It is necessary to take note of the fact that the instant suit was filed on29.08.1985, and the written statement was filed on 15.04.1986. It is this written statement filed on 15.04.1986,which is sought to be amended by introducing the counter-claim.

(3) Another judgment relied upon by the counsel for the defendant is in Jai Jai Ram Manohar Lalv. National Building Material Supply, Gurgaon, , in which the Supreme Court has observed that, "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence, or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala tide, or that .by his blunder, he bad caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

(4) To the aforesaid categories, justifying the refusal for amendment, I Ventufeto add a third category to the effect that amendments are not to be allowed, when allowing such amendment would be contrary to any statutory provisions. In the instant case, in the Code of Civil Procedure Rule 6A of Order Viii requires the defendant to make all counter-claims before the defendant delivers the defense. The defense of the defendant can only be by written statement. The effect of this rule is that the counter-claims have to be made before the written statement is filed, or in the written statement itself. Rule 6A reads as under:- 6A.(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, and 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 defense or before the time limited for delivering his defense 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 be treated as a plaint and governed by the rules applicable to plaints.

(5) The written statement in this case was filed in the year 1986. The amendment is being sought in the year 1992, much after the defense was delivered. Therefore, on account of the provisions of Order Viii Rule 6A, I cannot allow the defendant to amend the written statement.

 (6) The defendant relies upon the provisions of Rule 6B, which reads as follows:-    6B.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.  

 (7) It will be noted that even Rule 6B of Order Viii postulates that the counter-claim has to be specifically stated as a counter-claim in the written statement. This sub-rule does not help the defendant either.   

 (8) Further, inasmuch as equitable set off is already pleaded in the original written statement, I do not think any prejudice would be caused to the defendant.   

 (9) In any case, the amendment sought is not permissible because of the provisions of Order Viii Rule 6A.   

 (10) The application I.A.8316 of 1992 for amendment of the written statement by incorporating a counter-claim is, therefore, dismissed with no order as to costs.