Karnataka High Court
Kum.K.L. Navyashree D/O K Linge ... vs Sri.K Manjunath S/O Late K R ... on 2 August, 2023
Bench: Sachin Shankar Byssmj
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NC: 2023:KHC-D:8128
WP No. 100886 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 100886 OF 2021 (GM-CPC)
BETWEEN:
KUM. K.L. NAVYASHREE, D/O. K. LINGE GOWDA,
AGE: 30 YEARS, OCC: STUDENT,
R/O: 20/A, 1ST PHASE, FIRST MAIN,
W. C. ROAD, MANJUNATH NAGAR,
WEST OF CHORD ROAD, BENGALURU-WEST,
PIN CODE 560010.
...PETITIONER
(BY SRI H.R. DESHPANDE AND SMT. USHA H. DESHPANDE,
ADVOCATES)
AND:
1. SRI K. MANJUNATH, S/O. LATE K.R. THIPPAIAH,
AGE: 54 YEARS, OCC: BUSINESS,
R/O. THIPPAIAH COMPOUND, KANAKA JYOTI COLONY,
OPPOSITE TO TARANATH HOSPITAL,
DR. RAJKUMAR ROAD, BALLARI, PIN CODE: 583 101.
YASHAVANT
NARAYANKAR
2. SUDHAKAR S/O. LATE VIRUPAKSHAPPA,
Digitally signed by
YASHAVANT
NARAYANKAR
AGE: 52 YEARS, OCC: PROPRITOR OF CHANDRA
Location: High
Court of Karnataka,
Dharwad
CAR CARE CENTRE, SITUATED AT SY NO.887/A1A,
ANANATHAPUR ROAD, OPP: TARANATH AYURVEDIC
HOSPITAL, BALLARI, PIN CODE: 583 101.
...RESPONDENTS
(NOTICE TO R1 AND R2 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ORDER OR DIRECTION OR WRIT TO QUASH THE
IMPUGNED ORDERS ON IA.NO.17 IN O.S.NO.774/2014 PASSED BY
THE LEARNED IST ADDITIONAL CIVIL JUDGE AND J.M.F.C. BALLARI
ON 27.01.2021 WHICH IS PRODUCED AT ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:8128
WP No. 100886 of 2021
ORDER
The captioned writ petition is filed by the plaintiff
feeling aggrieved by the order passed by the learned Judge
on I.A.No.17 wherein defendant No.1 set a up counter claim
by seeking amendment. The said order is under challenge.
2. Plaintiff has instituted a suit in O.S.No.774/2014
seeking the relief of injunction and declaration. Respondent
No.1/defendant No.1 on receipt of summons tendered
appearance and filed written statement on 19.06.2015. The
plaintiff to substantiate his case has let in evidence and has
also produced documentary evidence. Defendant No.1 has
filed I.A.No.17 seeking amendment of written statement and
by way of amendment, defendant No.1 intended to set up a
counter claim seeking the relief of specific performance. The
learned Judge allowed the application relying on the
principles laid down by the Hon'ble Apex Court in the case of
Nair Service etc. Vs K.C.Alexandar and Jai Jai Ram Vs.
National Building & Company. Referring to these two
judgments, learned Judge was of the view that to do
complete justice, amendment deserves to be allowed.
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WP No. 100886 of 2021
3. On examination of the order under challenge, I
would find that learned Judge has lost sight of the fact that
by way of amendment of written statement, defendant No.1
intended to set up a counter claim. It is a trite law that
subsequent to filing of written statement, counter claim
cannot be filed after issues are framed. It is only in
exceptional circumstances, the counter claim has to be
permitted after issues are framed. But there is a rider that
such a recourse is permissible, provided the plaintiff has not
commenced with his evidence. In the instant case, defendant
No.1 intended to set up a counter claim when plaintiff's
evidence is recorded and closed.
4. Though there cannot be hard and fast rules in
declining to entertain the counter claim post settlement of
issues, the court permitting the defendant to raise counter
claim post settlement issues has to exercise discretion
judiciously. The trial court has to bear in mind that no
serious prejudice is caused to the opposite party. After
conclusion of plaintiff's evidence and having regard to the
facts and circumstances of the case, I am of the view that
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WP No. 100886 of 2021
learned Judge erred in entertaining an application seeking
amendment of written statement, which is unduly delayed.
Entertaining a counter claim when the matter is set down by
defendant's evidence may not be in the best interest of
plaintiff, who would be seriously prejudiced. If the suit has
substantially proceeded, at this juncture defendant No.1
cannot be permitted to set up the plea of counter claim by
seeking amendment of the written statement, which would
be detrimental not only to the plaintiff's right, it would also
be detrimental to speedy disposal. The Hon'ble Apex Court in
the case of Ashok Kumar Kalra vs. Wing Cdr Surendra
Agnihotri and others reported in (2020) 2 SCC 394
clearly held that defendants cannot be in a mechanical
manner permitted to raise counter claim post settlement of
issues.
5. Learned Judge probably has got swayed away by
the principles relating to amendment of pleadings. Though
strict requirements of amendment of plaint are not applicable
to the amendment of written statement, what the learned
Judge has missed out is, under the garb of amendment,
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WP No. 100886 of 2021
defendant No.1 intended to set up a counter claim. It is in
this background, learned Judge has failed to take cognizance
of mandatory requirements of Order 8 Rule 6A of CPC while
entertaining amendment application. The order under
challenge is not sustainable.
6. For the reasons stated supra, the writ petition is
allowed. The impugned order dated 27.01.2021 passed on
I.A.No.17 in O.S.No.774/2014 by the I Additional Civil Judge
and JMFC, Ballari is set aside.
Sd/-
JUDGE
MBS
