M/S. Academy Of Liberal Education vs Dr. K V Chidananda
2023 Latest Caselaw 2539 Kant

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                                                             WP No. 9955 of 2023




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                  DATED THIS THE 24TH DAY OF MAY, 2023

                                                BEFORE

                              THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

                                 WRIT PETITION NO. 9955 OF 2023 (GM-CPC)

                      BETWEEN:

                      1.   M/S. ACADEMY OF LIBERAL EDUCATION
                           A SOCIETY REGISTERED UNDER
                           THE PROVISIONS OF KARNATAKA
                           SOCIETIES REGISTRATION ACT,
                           KURUNJIBAGH, SULLIA,
                           DAKSHIN KANNADA - 574327
                           REPRESENTED BY ITS GENERAL SECRETARY
                           DR RENUKA PRASAD K V.

                      2.   M/S KVG INDUSTRIAL TRAINING INSTITUTE
                           A GOVERNMENT AIDED INSTITUTION
                           ESTABLISHED AND RUN BY
                           ACADEMY OF LIBERAL EDUCATION SULLIA,
Digitally signed by
NARASIMHA
                           DASKHINA KANNADA LOCATED AT
MURTHY VANAMALA
Location: HIGH
                           BHAGAMANDALA, MADIKERI TALUK,
COURT OF
KARNATAKA                  KODAGU - 571247
                           REPRESENTED BY ITS AUTHORIZED SIGNATORY
                           DR RENUKA PRASAD K V.

                      3.   DR RENUKA PRASAD K V
                           S/O DR KURUNJI VENKATRAMANA GOWDA
                           AGED ABOUT 60 YEARS,
                           GENERAL SECRETARY
                           ACADEMY OF LIBERAL EDUCATION
                           SULLIA, DAKSHINA KANNADA,
                           HAVING ITINERATE OFFICE WITHIN
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                                     WP No. 9955 of 2023




     THE PRECINCTS OF KVG INDUSTRIAL TRAINING
     INSTITUTE, BHAGAMANDALA,
     MADIKERI TALUK, KODAGU - 571247.

                                           ...PETITIONERS
(BY SRI. A MADHUSUDHANA RAO.,ADVOCATE)

AND:

1.   DR. K V CHIDANANDA
     S/O DR. KURUNJI VENKATARAMANA GOWDA
     AGED ABOUT 65 YEARS
     DESIGNATED AS THE PRESIDENT OF
     M/S ACADEMY OF LIBERAL EDUCATION SULLIA,
     DAKSHINA KANNADA
     RESIDENT OF VENKATESHANILAYA
     KURUNJI HOUSE, SHRIRAMPET,
     SULLIA, DAKSHINA KANNADA - 574327.

2.   SHRI K V HEMANATH
     S/O LATE K M VISHWANATH GOWDA
     AGED ABOUT 64 YEARS
     DESIGNATED AS THE JOINT SECRETARY OF
     M/S ACADEMY OF LIBERAL EDUCATION SULLIA,
     DAKSHINA KANNADA
     C/O KURUNJI HOUSE,
     PARIVARAKANA SULLIA - 574237.

3.   SMT. SHOBHA CHIDANANDA
     W/O DR K V CHIDANANDA
     AGED ABOUT 63 YEARS
     DESIGNATED AS THE DIRECTOR OF
     M/S ACADEMY OF LIBERAL EDUCATION SULLIA,
     DAKSHINA KANNADA
     R/A VENKATESHANILAYA,
     KURUNJI HOUSE SHRIRAMPET SULLIA
     DAKSHIN KANNADA - 574327.
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                                         WP No. 9955 of 2023




4.    MR AKSHAY K C
      S/O DR K V CHIDANANDA
      AGED ABOUT 30 YEARS
      DESIGNATED AS THE DIRECTOR OF
      M/S ACADEMY OF LIBERAL EDUCATION SULLIA,
      DAKSHINA KANNADA
      R/A VENKATESHANILAYA
      KURUNJI HOUSE,
      SHRIRAMPET SULLIA
      DAKSHIN KANNADA - 574237.

5.    DR MS. AISHWARYA
      D/O DR K V CHIDANANDA
      AGED ABOUT 35 YEARS
      WRONGLY DESIGNATED AS
      THE DIRECTOR, M/S ADADEMY OF
      LIBERAL EDUCATION SULLIA,
      DAKSHINA KANNADA
      C/O GANGOTRI NURSING HOME
      BTM LAYOUT
      BANGALORE - 560076.

6.    DR. MR. GAUTHAM
      S/O SHRI LINGE GOWDA
      AGED ABOUT 37 YEARS
      DESIGNATED AS THE DIRECTOR OF
      M/S ACADEMY OF LIBERAL
      EDUCATION SULLIA,
      DAKSHINA KANNADA
      C/O GANGOTRI NURSING HOME
      BTM LAYOUT,
      BANGALORE - 560076.


                                             ...RESPONDENTS
(BY SRI.SRINIVASA RAGHAVAN., SENIOR ADVOCATE FOR
     SRI. CYRIL PRASAD PAIS, ADVOCATE)
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                                                  WP No. 9955 of 2023




      THIS    WP       IS    FILED     UNDER   ARTICLE    227    OF   THE
CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED
ORDER DATED 20/04/2023 ON IA NO. 31 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE JMFC SULLIA PRESIDED BY THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC PUTTUR, IN OS NO.12/2021
PRODUCED AT ANNEXURE-F ALLOW THIS WP WITH COSTS.

      THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE

COURT MADE THE FOLLOWING:

                                       ORDER

This petition by the plaintiffs in O.S.No.12/2021 on the file of

the Senior Civil Judge and JMFC, Sullia, Dakshina Kannada (for

short, 'the trial Court') is directed against the impugned order dated

20.04.2023 on I.A.No.XXXI under Order VI Rule 17 of the Code of

Civil Procedure, 1908 (for short, 'CPC') whereby, the said

application filed by the respondents-defendants seeking

amendment of the written statement by introducing/putting forth the

additional defenses and counterclaim against the petitioners-

plaintiffs was allowed by the trial Court.

2. Heard learned counsel for the petitioners and learned

counsel for the respondents and perused the material on record.

WP No. 9955 of 2023

3. The material on record discloses that the petitioners-

plaintiffs instituted the aforesaid suit against the respondents-

defendants for declaration, mandatory injunction and other reliefs

and the said suit is being contested by the respondents-

defendants, who have filed their written statement. Subsequently,

prior to framing of Issues, the respondents-defendants filed the

instant application (I.A.No.XXXI) under Order VI Rule 17 of CPC

seeking amendment of the written statement by putting forth certain

additional defenses as well as the counterclaim, both in respect of

subsequent events that have transpired/occurred subsequent to

filing of their written statement. The said application having been

opposed by the petitioners-plaintiffs, the trial Court proceeded to

pass the impugned order allowing I.A.No.XXXI, aggrieved by

which, the petitioners-plaintiffs are before this Court by way of the

present petition.

4. In addition to reiterating the various contentions urged

in the petition and referring to the material on record, learned

counsel for the petitioners submits that a perusal of the proposed

amendment introducing additional defenses and putting forth a

counterclaim by the respondents-defendants as sought for in

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I.A.No.XXXI will indicate that the same has been filed after the time

limit prescribed under Order VIII Rule 6A of CPC i.e., in relation to

a cause of action that undisputedly arose subsequent to the

respondents-defendants filing their written statement, which is

barred under the provisions as contained under Order VIII Rule 6-A

of CPC as held by the Hon'ble Apex Court in the cases of

Bollepanda P. Poonacha and Another Vs. K.M.Madapa1 and

Ashok Kumar Kalra Vs. Wing Cdr. Surendra Agnihotri and

Others2.

5. It is submitted that the written statement was filed by

the respondents-defendants on 29.01.2021 and the application for

amendment filed on 13.12.2022 in relation to a cause of action that

occurred subsequent to 29.01.2021 was clearly barred by Order

VIII Rule 6-A of CPC and the trial Court failed to appreciate this

and proceeded to pass the impugned order allowing I.A.No.XXXI,

which deserves to be set aside.

6. Per contra, learned Senior counsel for the respondents

invited my attention to the judgment of the Hon'ble Apex Court in

(2008) 13 SCC 179

(2020) 2 SCC 394

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the case of Mahesh Govindji Trivedi Vs. Bakul Maganlal Vyas

and Others3 in order to point out that putting forth the counterclaim

by way of an amendment to a written statement seeking to

incorporate subsequent events which have transpired after the

written statement was filed, has been permitted by the Hon'ble

Apex Court after referring to its earlier judgment in Ashok Kumar

Kalra's case (supra) and bearing in mind that the object of Order

VIII Rule 6-A of CPC which was to prevent multiplicity of

proceedings. It was therefore contended that the trial Court was

fully justified in allowing I.A.No.XXXI by passing the impugned

order, which does not warrant interference by this Court in the

present petition in the exercise of its supervisory jurisdiction under

Article 227 of the Constitution of India.

7. I have given my anxious consideration to the rival

submissions and perused the material on record.

8. Before adverting to the rival contentions, it is

necessary to state that in Bollepanda P. Poonacha's case

(supra), the Hon'ble Apex Court has held as under:

2022 SCC Online SC 1390

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"11. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The respondent in his application for amendment of written statement categorically raised the plea that the appellants had tresspassed on the lands in question, in the summer of 1998.

Cause of action for filing the counterclaim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of Sri Ryaz Ahmed is based on the decision of this Court in Baldev Singh.

15. A belated counterclaim must be discouraged by this Court. See Ramesh Chand Ardawatiya Vs. Anil Panjwani. We are, however, not unmindful of the decisions of this Court where a defendant has been allowed to amend his written statement so as to enable him to elaborate his defence or to take additional pleas in support of his case. The Court in such matters has a wide discretion. It must, however, subserve the ultimate cause of justice. It may be true that further litigation should be endeavoured to be avoided. It may also be true that joinder of several causes of action in a suit is permissible. The Court, must, however, exercise the discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of

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serious injustice or irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings are not available as a matter of right under all circumstances. One cause of action cannot be allowed to be substituted by another. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away. See State of A.P Vs. M/s. Pioneer Builders and Steel Authority of India Ltd. Vs. Union of India & Ors. and Himmat Singh and Ors. Vs. I.C.I. India Ltd. and Ors.,"

Similarly, in Ashok Kumar Kalra's case (supra), the three Judge

Bench of the Hon'ble Apex Court has held as under:

"17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order VIII Rule 6A. Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time-- barred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order 8 Rule 6A.

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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 6A in Order 8 of the 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 filing 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 hyper-technical 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 conclusion that by allowing the counter-

claim, 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 the CPC.

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19. In this regard having clarified the law, we may note that the Mahendra Kumar Case needs to be understood and restricted to the facts of that case. We may note that even if a counterclaim is filed within the limitation period, the trial court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. The discretion vested with the trial court to ascertain the maintainability of the counter claim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting counterclaim.

20. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognize the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well [refer to Salem Advocate Bar Association Case].

21. We sum up our findings, that Order 8 Rule 6-A of the 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

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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.

iii. Reason for the delay.

iv. Defendant's assertion of his right.

v. Similarity of cause of action between the main suit and the counterclaim.

vi. Cost of fresh litigation.

vii. Injustice and abuse of process.

viii. Prejudice to the opposite party.

ix. and facts and circumstances of each case.

x. In any case, not after framing of the issues.

Subsequently, in Mahesh Govindindji Trivedi's case (supra) ,

after referring to the judgment of the three Judge Bench in Ashok

Kumar Kalra's case (supra), the Hon'ble Apex Court took into

account that incorporation of a counterclaim by way of amendment

in relation to subsequent events that had transpired subsequent to

filing of their written statement is to be permitted for the purposes of

preventing multiplicity of proceedings and in this context, the

Hon'ble Apex Court has held as under:

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"7. In relation to the suit property situated at Vile Parley, Dadabhai Road, Mumbai, the plaintiffs-respondents have filed the suit in question bearing No. 1821 of 2004 on 10.06.2004, seeking specific performance of an alleged agreement for transfer dated 28.05.2001, said to have been executed by its owner, late Ramalaxmi Ravishankar Trivedi, who was the sister of the appellant and who expired on 31.01.2004. In the said suit, apart from the appellant, other legal heirs of the deceased owner were also arrayed as defendants. The appellant filed his written statement in the suit on 16.11.2005.

8. It has been pointed by the appellant that he had acquired all the rights in the suit property by testamentary succession and by settlement with the said other legal heirs of the deceased owner. According to the appellant, the matter relating to his succession to the suit property ultimately got settled only on 05.04.2017. Thereafter, on 16.01.2018, for the appellant having acquired ownership rights in the suit property, Chamber Summons (L) No. 559 of 2017 was filed in order to delete other defendants from Suit No. 1821 of 2004; the said chamber summons was allowed and the defendant Nos. 1,2,4, & 5 were deleted from the array of parties.

11. In view of the liberty so given by the Division Bench, the appellant filed Notice of Motion (L) No. 1014 of 2019 (later numbered as Notice of Motion No. 1547 of 2019) seeking leave to file the counter-claim claiming possession of the suit property. A copy of the affidavit filed in support of this notice of motion has been placed before us wherein the appellant has stated the reason and basis of his filing counter-claim to avoid

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multiplicity of proceedings without altering the nature of the suit in question; and has also pointed out that the counter-claim was filed before framing of issues and only after he became entitled to the suit property upon finalisation of the dispute relating to succession. The appellant, inter alia, stated in this affidavit as under: -

"17. I say that I have therefore filed the present notice of motion seeking leave of this Hon'ble court to file the Counter claim for effective adjudication of disputes between the parties. In view of following reasons

a. The suit is for specific performance of the agreement dated 28th May 2001, clause no. 4 of the suit agreement clearly records that the Plaintiffs were put in vacant and peaceful possession upon execution of the agreement.

b. In the event the above suit is dismissed by this Hon'ble court, then this Defendant would be entitled to seek vacant and peaceful possession from the Plaintiff which the plaintiffs are enjoying under the Suit Agreement and hence the Counter Claim seeking vacant possession of the suit property is necessary to avoid multiplicity of proceedings and to avoid delay.

c. The claim of possession is not Barred by limitation, As this defendant would be entitled to seek possession only upon dismissal of the suit and both issues can be decided together simultaneously. As of today the Plaintiff is claiming possession of the

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Suit Property under the suit agreement and not either adverse possession or illegal trespass. My counterclaim claiming possession of the suit property is based on my title to the suit property. I am a lawful owner of the suit property. My right to recover possession of the suit property will start from the date the plaintiff refuses to hand over the possession and/or claims adverse possession of the suit property. In these circumstances my claim of possession in the suit property is not barred by law of limitation.

d. That the counter claim was filed prior to framing of the issues in the above suit.

e. This Defendant became entitled to the suit property only upon settlement of disputed between the legal heirs of Smt. Ramalaxmi Trivedi and finalization of the probate in 2017.

f. This Defendant or the original defendants never made any attempts to delay the proceedings and on the contrary after this defendant obtained probate, this defendant took steps to get the hearing of the above suit and the suit was proceeded till the framing of issues and filing of affidavit of evidence along with the compilation of documents.

g. The counter claim will not materially change the nature of the suit and only additional issues will be

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required to be framed so that both the counter claim and the suit can be decided together.

h. Permitting this defendant to file the counter claim will not cause any prejudice to the plaintiff as there will not be any change of cause of action in the suit and the Counter claim is only in the nature consequential reliefs."

26. As regards the provisions of law applicable to the case, we may usefully take note of the provisions contained in Order VIII Rule 6-A of the Code of Civil Procedure, 19083 and Rule 95 of the Bombay High Court (Original Side) Rules as follows: -

Order VIII Rule 6-A CPC:

"6-A. Counterclaim 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 counterclaim 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 counterclaim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.

(2) Such counterclaim 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 counterclaim.

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(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the court.

(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints."

Rule 95 of the Bombay High Court (Original Side) Rules:

"95. A defendant in a suit, in addition to his right of pleading a set- off under Order VIII, Rule 6 of the Code of Civil Procedure, may set-up by way of counter-claim against the claims of the plaintiff any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defence and before the time limited for delivering his defence has expired, whether such counter-claim sounds in damages or not, and 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; and the plaintiff (if so advised) shall be at liberty to file a reply to the counter-claim of the defendant within eight weeks after service upon him or his Advocate on record of a copy of the defendant's counter-claim; and the Court or the Judge in Chambers may, on the application of the plaintiff before trial if in the opinion of the Court or the Judge such counter-claim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof and require him to file a separate suit in respect thereof."

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27. In Ashok Kumar Kalra (supra), the 3-Judge Bench of this Court essentially considered the question on reference as to whether it is mandatory for a counter-claim of the defendant to be filed along with the written statement. While answering this question, this Court underscored the basic principles that procedural law should not be construed in such a way that it would leave court helpless; and that a wide discretion had been given to the Civil Court regarding the procedural elements of a suit. Having said so, this Court observed that a counter-claim is designed to avoid multiplicity of proceedings; that time limit for filing a counter-claim is not explicitly provided for but there is limitation as to the accrual of the cause of action. However, the majority opinion has been that the defendant cannot be permitted to file counter-claim after the issues are framed and the suit has proceeded substantially. It was observed and held in the lead judgment, inter alia, as under: -

"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 filing 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 hyper-technical approach that the provision stipulates that the counterclaim has

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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 counterclaim, 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 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

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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.

(iii) Reason for the delay.

(iv) Defendant's assertion of his right.

(v) Similarity of cause of action between the main suit and the counterclaim.

(vi) Cost of fresh litigation.

(vii) Injustice and abuse of process.

(viii) Prejudice to the opposite party.

(ix) And facts and circumstances of each case.

(x) In any case, not after framing of the issues."

29. In a conspectus of the aforesaid and while proceeding on the fundamental principles that the rules of procedure are intended to subserve the cause of justice rather than to punish the parties in conduct of their case, we are clearly of the view that the counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement. Indisputably, the counter-claim was filed on 07.09.2018 and until that date, issues had not been framed in the suit. In fact, the issues were framed only on 05.12.2018, the very date on which the learned Single Judge in the first round of

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these proceedings took the counter-claim off the record for no permission/leave having been sought for its presentation. In appeal against the order dated 05.12.2018, the Division Bench permitted filing of the requisite application seeking permission to file the counter-claim, while taking note of the submissions of the plaintiffs-respondents that they will not raise an objection to such application on the ground that the issues had already been framed and documentary evidence had been presented; and the Division Bench expected the learned Single Judge to deal with such an application on its own merits. Pursuant to the liberty so granted by the Division Bench, the appellant moved the application seeking permission to place the counter- claim on record and in support thereof, filed a detailed affidavit stating specific reasons for which the counter-claim was sought to be filed, including that of avoiding the multiplicity of proceedings. The appellant also pointed out the fact that he was earlier engaged in the dispute concerning succession to the property, which came to be settled in his favour only in the year 2017. The learned Single Judge, while passing the order dated 02.05.2019, did not elaborate much on the other aspects but pointed out the reason for accepting the prayer of the appellant that it would avoid multiplicity of proceedings; and in all fairness to the plaintiffs- respondents, kept all their defences, including as to limitation, specifically open. The said order dated 02.05.2019, even if passed by the learned Single Judge on the very first day of consideration of the application moved by the appellant, had been a just and proper order which was conducive to the proper progression of the proceedings while avoiding multiplicity of litigation. There was no justified reason for the Division Bench to have interfered with the order so passed by the learned Single Judge.

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30. In the totality of the facts and circumstances of the present case, we are clearly of the view that neither the requirements of Order VIII Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciated and explained in Ashok Kumar Kalra (supra) operate as a bar over the prayer of the appellant for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues."

9. In the instant case, a perusal of the proposed

amendment sought for by the respondents-defendants will indicate

that counterclaim and the additional defenses put forth by the

respondents-defendants are in relation to events that have

transpired from 23.12.2021 onwards, i.e., subsequent to

29.01.2021 when the written statement was filed by the

respondents. Under these circumstances, as held by the Hon'ble

Apex Court in Mahesh Govindji Trived's case (supra), I am of the

considered opinion that in order to prevent multiplicity of

proceedings, the trial Court was fully justified in allowing the

application filed by the respondents-defendants.

10. A perusal of the proposed amendment incorporating

the counterclaim will indicate that the proposed amendment relates

to subsequent events that have transpired during the pendency of

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the suit after filing of the written statement. There is no gainsaying

the fact that the petitioners-plaintiffs would be entitled to file written

statement to the counterclaim and contest the claim. So also, the

additional defenses and the counterclaim sought for by the

respondents-defendants will only indicate that the respondents

have sought for permanent injunction against the plaintiffs pursuant

to events that have transpired during the pendency of the

proceedings. Under these circumstances, I am of the view that the

impugned order passed by the trial Court does not suffer from any

illegality or infirmity occasioning failure of justice and warranting

interference of this Court in exercise of its powers under Article 227

of the Constitution of India, as held by the Hon'ble Apex Court in

the case of Radhey Shyam Vs. Chhabi Nath4, particularly when

no prejudice is established by the petitioners and the only result of

preventing the respondents from putting forth the counterclaim will

drive them to file a separate suit resulting in multiplicity of

proceedings, which is not warranted in the facts and circumstances

in the instant case. I do not find any illegality or infirmity in the

(2015) 5 SCC 423

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impugned warranting interference by this Court in the present

petition.

11. In result, I proceed to pass the following:

ORDER

a) The petition is hereby dismissed.

b) The impugned order dated 20.04.2023 in

O.S.No.12/2021 on the file of the Senior Civil

Judge and JMFC, Sullia, Dakshina Kannada is

hereby confirmed.

c) Liberty is reserved in favour of the petitioners-

plaintiffs to file their written

statement/rejoinder/reply to the written statement

and counterclaim of the defendants.

d) Liberty is also reserved to the parties to file

interlocutory applications which shall be

considered by the trial Court in accordance with

law.

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All rival contentions on all aspects of the matter are kept

open and no opinion is expressed on the same.

Sd/-

JUDGE

RB