Karnataka High Court
Sri Jayanna @ Jayapal vs Sri Malleshaiah on 18 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 13980 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 13980 OF 2023 (GM-CPC)
BETWEEN:
SRI. JAYANNA @ JAYAPAL,
S/O MUNIYAPPA, AGED 61 YEARS,
R/AT 109, 4TH CROSS,
KRISHNAPPA LAYOUT,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
...PETITIONER
(BY SMT.SREEVIDYA G.K., ADVOCATE FOR
SRI. T.N.VISWANATHA., ADVOCATE)
AND:
1. SRI. MALLESHAIAH,
S/O CHOWDA SHETTY,
AGED 49 YEARS, R/AT NO.90-C,
Digitally signed by
SUCHITRA M J
KATHA NO. 86/1, 1ST MAIN ROAD,
Location: High VEERABHADRA NAGAR,
Court of Karnataka
HOSAKEREHALLI VILLAGE,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
2. SRI. R. KUMARASWAMY,
S/O LATE G. RANGASWAMY,
AGED 41 YEARS,
R/AT NO.91/27, 9TH MAIN,
7TH CROSS, DWARAKANAGAR,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
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WP No. 13980 of 2023
3. SMT. M. CHAMPAKAVATHI,
D/O LATE G. RANGASWAMY,
AGED 59 YEARS, R/AT NO.91/27,
9TH MAIN, 7TH CROSS,
DWARAKANAGAR,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
4. SMT. B.K. SHARADA,
D/O LATE B.T.KEMPANNA,
AGED 66 YEARS,
R/AT NO.1 AND 2, 4TH CROSS,
DWARAKANAGAR, HOSAKEREHALLI,
BANASHANKARI III STAGE,
BENGALURU - 560 085.
...RESPONDENTS
(BY SRI. VIVEKANANDA T P., ADVOCATE FOR R1;
SRI.NISHANTH A.V., ADVOCATE FOR R4;
R2 AND R3 ARE SERVED BUT UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED ORDER DATED 01/06/2023 PASSED ON IA NO.11
IN OS NO.27089/2012 PENDING ON THE FILE OF THE XLIVTH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
VIDE ANNEXURE F AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 13980 of 2023
ORDER
The petitioner, defendant No.3 in O.S.No.27089/2012
on the file of the XLIV Additional City Civil and Sessions
Judge, Bengaluru is before this Court, aggrieved by order
dated 01.06.2023, rejecting I.A.No.11 filed under Order VI
Rule 17 of the Code of Civil Procedure, 1908 (for short 'CPC')
to amend the written statement by including counter claim.
2. Heard Smt. Sreevidya.G.K., learned counsel for
Sri. T.N.Viswanatha, learned counsel for the petitioner and
Sri. T.P.Vivekananda, learned counsel for respondent No.1 as
well as Sri. Nishanth.A.V., learned counsel for respondent
No.4. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit
that the suit of respondent No.1-plaintiff is for declaration
and permanent injunction in respect of the suit schedule
property. On appearance, the petitioner-defendant No.3 filed
written statement. When the suit was at the stage of
commencement of evidence of plaintiff, the petitioner-
defendant No.3 filed I.A.No.11 under Order VI Rule 17 of
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CPC to amend the written statement to include counter claim
of declaration and mandatory injunction in respect of the suit
schedule property. The trial Court under impugned order
rejected the said amendment application. Learned counsel
further submits that the trial Court committed grave error in
rejecting the amendment application and would submit that
the amendment was to include averment as to how the
defendant acquired title over the suit schedule property and
also for adding additional prayer of declaration and
mandatory injunction. Learned counsel would further submit
that if the amendment application is allowed, no prejudice
would be caused to the case of the respondent-plaintiff and
other defendants and on the other hand, it would facilitate in
deciding the dispute between the parties once for all. Thus,
he prays for allowing the writ petition by setting aside the
impugned order.
4. Per contra, learned counsels appearing for the
respondent-plaintiff as well as other defendants, would
support the order passed by the trial Court. Further, they
would submit that to include counter claim of declaration and
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mandatory injunction by way of amendment to written
statement after commencement of trial, that too once issues
are framed, is not permissible and in that regard, they would
place reliance on the decision of 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. Thus, they pray for dismissal of the
writ petition.
5. Having heard the learned counsels for the parties
and on perusal of the writ petition papers, I am of the view
that the petitioner has not made out any ground to interfere
with the impugned order. Moreover, impugned order is
neither perverse nor suffers from any material irregularity so
as to warrant interference under Article 227 of the
Constitution of India.
6. The suit of respondent No.1-plaintiff is for
permanent injunction in respect of suit schedule property.
When the suit was at the stage of evidence of plaintiff, the
petitioner-defendant No.3 filed application under Order VI
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Rule 17 of CPC to add additional facts and additional prayer.
The additional prayer sought by way of counter claim, reads
as follows:
"The following amendment may be incorporated in the
prayer column of Written statement of Defendant No.3:
After the word 'suit schedule property' to add
"the Defendant No.3 prays that this Hon'ble Court may be
pleased to pass a Judgment and Decree for permanent
injunction in respect of Written statement "A' Schedule
property, restraining the plaintiff, his agents, servant or
anybody claiming under him from interfering this
Defendant in possession and enjoyment of the Written
Statement 'A' schedule property, declaration by declaring
that, this defendant is the absolute owner of written
statement 'B' schedule property and for Mandatory
Injunction and Possession of the Written statement 'B'
Schedule property by removing the illegal structure raised
by the plaintiff on the 'B' Schedule property. If the Plaintiff
fails to remove the existing illegal structure on the
Schedule "B' Property, this Hon'ble Court may be pleased
to order for demolition the existing illegal structure on the
written statement 'B' Schedule property through court
process and to hand over the same to this Defendant
No.3"
7. As the recording of plaintiff's evidence is
commenced on framing of issues, amendment of written
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statement to include counter claim would not be permissible
in terms of the decision of the Hon'ble Apex Court in the case
of ASHOK KUMAR KALRA (supra), relevant paragraph
Nos.18 and 21 reads as follows:
"18. As discussed by us in the preceding
paragraphs, the whole purpose of the procedural law is
to ensure that the legal process is made more effective
in the process of delivering substantial justice.
Particularly, the purpose of introducing Rule 6-A in
Order 8 CPC is to avoid multiplicity of proceedings by
driving the parties to file separate suit and see that the
dispute between the parties is decided finally. If the
provision is interpreted in such a way, to allow delayed
filling of the counterclaim, the provision itself becomes
redundant and the purpose for which the amendment is
made will be defeated and ultimately it leads to flagrant
miscarriage of justice. At the same time, there cannot
be a rigid and hypertechnical approach that the
provision stipulates that the counterclaim has to be filed
along with the written statement and beyond that, the
Court has no power. The Courts, taking into
consideration the reasons stated in support of the
counter claim, should adopt a balanced approach
keeping in mind the object behind the amendment and
to subserve the ends of justice. There cannot be any
hard and fast rule to say that in a particular time the
counterclaim has to be filed, by curtailing the discretion
conferred on the Courts. The trial court has to exercise
the discretion judiciously and come to a definite
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conclusion that by allowing the counterclaim, no
prejudice is caused to the opposite party, process is not
unduly delayed and the same is in the best interest of
justice and as per the objects sought to be achieved
through the amendment. But however, we are of the
considered opinion that the defendant cannot be
permitted to file counterclaim after the issues are
framed and after the suit has proceeded substantially. It
would defeat the cause of justice and be detrimental to
the principle of speedy justice as enshrined in the
objects and reasons for the particular amendment to
CPC.
21. We sum up our findings, that Order 8 Rule 6-
A CPC does not put an embargo on filing the
counterclaim after filing the written statement, rather
the restriction is only with respect to the accrual of the
cause of action. Having said so, this does not give
absolute right to the defendant to file the counterclaim
with substantive delay, even if the limitation period
prescribed has not elapsed. The court has to take into
consideration the outer limit for filing the counterclaim,
which is pegged till the issues are framed. The court in
such cases have the discretion to entertain filing of the
counterclaim, after taking into consideration and
evaluating inclusive factors provided below which are
only illustrative, though not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of
action pleaded.
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(iii) Reason for the delay.
(iv) Defendant's assertion of his right.
(v) Similarly of cause of action between the
main suit and the counterclaim."
8. The above decision abundantly makes it clear that
once issues are framed, no counter-claim by the defendant
would be maintainable. The above decision would aptly
apply to the facts of the present case. Thus, I do not find
any infirmity in the order passed by the trial Court.
Accordingly, writ petition stands rejected.
In view of the above, I.A.No.1/2023 does not survive
for consideration.
Sd/-
JUDGE
SMJ
