Smt. Butna Devi vs Sh. Amit Talwar And Ors.
2013 Latest Caselaw 4529 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       I.A. No. 4672/2013 (O.6 R.17 CPC) in CS (OS) No. 1687/2006

%                                                Reserved on: 24th September, 2013
                                                 Decided on: 1st October, 2013
SMT. BUTNA DEVI                                                      ..... Plaintiff
                                Through:      Mr. R.M. Sinha, Advocate.

                                versus

SH. AMIT TALWAR AND ORS.                                      ..... Defendants
                  Through:                    Mr. Aman Mehta, Advocate.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J.

1. By this application the Defendant No. 1 seeks to amend the written

statement along with the counter claim thereby adding para-13 in the

preliminary objections as under:

"13. That the Defendant No. 1 reserves his right to file counter claim to pay the balance payment of Rs. 30,88,249/- as alleged by the Plaintiff and the Plaintiff be directed to hand over the peaceful physical possession of the suit premises to the Defendant No. 1."

2. Learned counsel for the Defendant/applicant contends that the

amendment in the written statement and the filing of the counter claim is

necessitated because the Plaintiff has amended the plaint by withdrawing the

alternate relief. The Plaintiff had made an alternate prayer in the plaint

seeking directions to the Defendant No. 1 to return the cheque amount of Rs.

30,88,249/- with damages of a sum of Rs. 5 lakhs and interest pendentelite

and future. By way of I.A. No. 15749/2011 under Order VI Rule 17 CPC

the Plaintiff sought amendment of the plaint deleting this alternate prayer in

the suit which was allowed vide order dated 14th February, 2012. Hence the

Defendant has been compelled to file the present application reserving the

right to file the counter claim with regard to return of Rs. 30,88,249/- to the

Plaintiff.

3. Learned counsel for the Defendant/applicant submits that in view of

this prayer as already made in the suit, as it stood, the Defendant was not

required to file the counter claim and only when the amendment in the plaint

was allowed vide order dated 14th February, 2012, the Defendant/Applicant

filed the present application on 11th March, 2013. It is contended that there

is no delay in filing the present application and even if there is a delay the

same is not a ground to reject the amendments as held by the Hon'ble

Supreme Court in Andhra Bank vs. ABN Amro Bank N.V. and others AIR

2007 SC 2511. Further at this stage this Court cannot go into the merits of

the amendment and cannot test the veracity or truthfulness of the

amendments sought to be made. Reliance is placed on Rajesh Sharma vs.

Krishan Pal and Another, 2011 (126) DRJ 34. The trial is yet to begin.

Though issues have been framed however, the evidence by way of affidavit

of the Plaintiff's witnesses have not been filed. Further even where the trial

has started the amendment in the plaint or the written statement can be

sought subject to the condition that the parties seeking the amendment has to

show that despite due diligence it was not in possession of the necessary

evidence with it.

4. Learned counsel for the Plaintiff/non-applicant on the other hand

states that vide order dated 14th February, 2012 when the amendment in the

plaint was allowed this Court clearly held that no amendment in the written

statement is necessary since no facts have been added in the plaint except

that one prayer has been deleted. This order dated 14th February, 2012 has

become final and the Defendant/Applicant cannot now seek recalling of the

said order in the garb of the present application. Further the amendment

sought to be brought is barred by limitation. The Defendant filed the written

statement in November, 2006 without a counter claim. He subsequently also

filed an application for depositing of the sum of Rs. 30,88,249 however, the

same was declined. Thus now to overcome all the adverse orders the

Defendant/applicant cannot seek amendment of the written statement. Order

VIII Rule 6A CPC bars filing of a counter claim beyond the period of

limitation. Reliance is placed on Smt. Neelam Gupta vs. Smt. Sheela Devi

and others, 87 (2000) DLT 368.

5. I have heard learned counsel for the parties.

6. The Plaintiff filed the present suit in August, 2006 inter alia seeking a

decree of declaration that the Sale Deed dated 4th August, 2006 registered

vide Register No. 5638, Volume No. 12070, Page No. 144 to 157 executed

by the Plaintiff in favour of Defendant No. 1 be declared as null and void as

the sale consideration mentioned in the sale deed pursuant to the cheque

bearing No. 186931 dated 3rd August, 2006 amounting to Rs. 30,88.249/-

drawn on Citi Bank (Financial), New Delhi has not been paid to the Plaintiff

besides a decree of permanent injunction. In the alternative it was also

prayed that the Defendant No. 1 be directed to return the cheque amount of

Rs. 30,88,249/- with damages amounting to Rs. 5 lakhs and interest

pendentelite and future.

7. The Defendant No. 1 filed his written statement within time as

observed vide order dated 4th January, 2007 however, no counter claim was

made and rightly so.

8. The Plaintiff filed an application being I.A. No. 15749/2011.

under Order VI Rule 17 read with Section 151 CPC seeking amendment of

plaint by deleting the alternative prayer in Prayer (i) as noted above. This

Court vide order dated 14th February, 2012 allowed the application on the

ground that it is well settled that the Plaintiff can withdraw any relief

claimed in the suit or entire suit at any stage. It was further observed that no

amended written statement was required since no new facts have been added

and only a prayer had been deleted. Vide order dated 1 st August, 2012 issues

were framed and the Plaintiff was directed to file evidence by way of

affidavit of its witnesses within six weeks. As no copy of the chief affidavit

was served to the Defendant the matter was listed for Plaintiff's evidence on

14th March, 2013. In the meantime, the Defendant/applicant filed the present

application being I.A. No. 4672/2013 u/Order Order VI Rule 17 CPC for

amendment of the written statement on 5th March, 2013 which came up

before this Court on 19th March, 2013.

9. As per the proviso to Order VI Rule 17 CPC no application for the

amendment shall be allowed after the trial has commenced unless the Court

comes to the conclusion that inspite of due diligence the party could not have

raised the matter before the commencement of the trial. The issue as to

when the trial commences is no longer res integra. The Hon'ble Supreme

Court in Baldev Singh and others vs. Manohar Singh and another, 2006 (6)

SCC 498 held:

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the Code of Civil Procedure provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

10. In Link Engineering (P) Ltd. v. Asea Brown Boveri Ltd. & Others.,

140 (2007) DLT 53 this Court noted that the issues were framed on 28th

August, 2006 and on the same date the parties were directed to file the list of

witnesses within six weeks and plaintiff was directed to file affidavits of

witnesses within eight weeks and 4th December, 2006 was fixed for

recording of the evidence. Before the said date, on 17th November, 2006 the

plaintiff filed an application seeking amendment of the plaint. After

considering the decisions of Supreme court in Baldev Singh & Others v.

Manohar Singh & Another, (2006) 3 SCC 498 and Ajendraprasadji N.

Pande and Another v. Swami Keshavprakeshdasji N. and Others, (2007) 1

JT 579 it was held that the trial did not commence on 28 th August, 2006

when issues were framed. This Court noted that if the affidavits were not to

be filed the date of appearance of the witnesses would be the date of

commencement of the trial. This Court noted that it would not be

appropriate to shut out the plaintiff from seeking amendment in the plaint on

the ground that there is commencement of the trial.

11. In Mohd. Saleem and others vs. Naseer Ahmed, AIR 2007 Delhi 48 the

Court observed:

"14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination Of witnesses whether in the form of filing of affidavit or otherwise.

15. In view of the aforesaid position, it cannot be said that on framing of issues itself the trial has commenced and thus the proviso to Rule 17 of Order 6 of the said Code would come into play."

12. The issues in the present suit were framed on 1 st August, 2012 and the

matter was listed for Plaintiff's evidence on 14th March, 2013 before which

date the Defendant filed the present application. In view of the legal position

it would not be thus appropriate to deny the leave to amend the written

statement on the ground that trial had commenced. Further the question in

the present case is whether the counter claim of the Defendant was barred by

limitation in view of order VIII Rule 6A which provides that a Defendant in

a suit may, in addition to his rights of pleadings a set off under Rule 6, set

up, by way of counter claim against claim of the Plaintiff, any right or claim

in respect of the 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. The period of limitation for the counter claim will have

to be seen from the date of cause of action accruing to the Defendant which

obviously would be after the filing of the plaint. In the present case it is an

admitted position that the Plaintiff had prayed for an alternative prayer of

directions to the Defendant No. 1 to return the cheque amounting to Rs.

30,88,249/-. In view of this prayer of the Plaintiff herself Defendant No. 1

was thus not required to take a preliminary objection reserving his right to

file the counter claim to pay a balance amount of Rs. 30,88,249/- and

directions to hand over the peaceful physical possession of the suit premises

to the Defendant No. 1. This has been undoubtedly necessitated by the

amendment brought in the plaint by the Plaintiff deleting the alternate prayer

which was allowed vide order dated 14th February, 2012. The present

counter claim is within limitation from the order dated 14 th February, 2011

and thus cannot be said to be barred by limitation as contended by learned

counsel for the Plaintiff.

13. Further the reference of the Plaintiff to the order dated 14 th February,

2011 observing that no amended written statement is required is also

misconceived. The said order was not on the specific prayer of the

Defendant No. 1/applicant for setting up of a counter claim and will not be a

bar to the relief which can be granted to the applicant/Defendant No.1 in the

present application.

In view of the aforesaid discussion and the facts of the case the

application is allowed.

The Defendant No. 1 is permitted to amend the written statement and

file counter claim as prayed for.

Application is disposed of.

CS (OS) No. 1687/2006

Amended written statement and counter claim be filed within four

weeks. Replication to the written statement and written statement to the

counter claim be filed within four weeks thereafter.

List before the learned Joint Registrar for further proceeding on 16th

December, 2013.

(MUKTA GUPTA) JUDGE OCTOBER 01, 2013 'vn'