Dwarka Prasad vs Harko Bai
2023 Latest Caselaw 9586 MP

                                                                          1
                                            IN THE HIGH COURT OF MADHYA PRADESH
                                                        AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                              ON THE 26 th OF JUNE, 2023
                                                           WRIT PETITION No. 533 of 2017

                                       BETWEEN:-
                                       DWARKA PRASAD S/O MOOLCHAND SAHU, AGED
                                       ABOUT 55 YEARS, VILLAGE NAGPURE KALA, TEHSIL
                                       ITARSI AND DISTRICT HOSHANGABAD (MADHYA
                                       PRADESH)

                                                                                                        .....PETITIONER
                                       (BY SHRI SANJAY SHARMA - ADVOCATE)

                                       AND
                                       1.    HARKO BAI W/O LATE SHRI GHOODI LAL, AGED
                                             ABOUT 65 YEARS, GRAM ROHANA TEHSIL
                                             HOSHANGABAD (MADHYA PRADESH)

                                       2.    SUNIL KUMAR SAHU S/O LATE DHUDILAL SAHU,
                                             AGED ABOUT 30 YEARS, R/O ROHNA (MADHYA
                                             PRADESH)

                                                                                                     .....RESPONDENTS
                                       (BY SHRI SUMIT RAGHUWANSHI - ADVOCATE)

                                             T h is petition coming on for orders this day, t h e cou rt passed the

                                       following:
                                                                           ORDER

This miscellaneous petition is filed by the plaintiffs being aggrieved of the order dated 06.09.2016 (Annexure P-7) passed by the learned First Civil Judge, Class-I, Hoshangabad to the Court of learned Second Additional Civil Judge, Hoshangabad in civil suit No.9-A/2014, whereby an application under Order 8 Signature Not Verified

Rule 6A, CPC has been allowed and defendants have been allowed to SAN

Digitally signed by PUSHPENDRA PATEL Date: 2023.06.27 11:26:55 IST incorporate counter claim by way of amendment after evidence of the plaintiffs

was over and defendants had taken several opportunities to lead evidence as is evident from the order-sheet dated 02.02.2011, whereby it is mentioned by the learned trial Judge that case has been listed for evidence of the defendants. Defendants were given sufficient opportunities to lead evidence on 29.11.2010, 13.12.2010, 20.12.2010 and, thereafter, it is mentioned that by way of last indulgence in the interest of justice, time is granted to file evidence by way of filing of affidavits under Order 18 Rule 4, CPC and case was fixed on 17.02.2011. There is no dispute to the fact that, thereafter, counter claim was sought to be brought on record.

Shri Sanjay Sharma, learned counsel for the petitioners places reliance on

the judgment of the Supreme Court in case of Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508, from paragraph 28 onwards and submits that impugned order be set aside.

Though Shri Sumit Raghuwanshi is placing reliance on the judgment of the Hon'ble Supreme Court in case of Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri and others, (2020) 2 SCC 394, but in para 17 of the said judgment, Hon'ble Supreme Court has observed as under:-

''... 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.'' Thus, in view of the said pronouncement of the Hon'ble Supreme Court and looking to the factual backdrop of the case that plaintiffs' evidence was closed and case was fixed for defendants' evidence when counter claim was sought to be filed by way of amendment, same cannot be allowed to be

Signature Not Verified SAN incorporated and to that extent order impugned is set aside.

Digitally signed by PUSHPENDRA PATEL In above terms, this miscellaneous petition is allowed and disposed of. Date: 2023.06.27 11:26:55 IST

(VIVEK AGARWAL) JUDGE pp

Signature Not Verified SAN

Digitally signed by PUSHPENDRA PATEL Date: 2023.06.27 11:26:55 IST