Smt. Neena Kohli (Female) Aged ... vs Mohan Singh
2021 Latest Caselaw 4608 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

               Writ Petition No. 3252 (MS) of 2019
         (Under Articles 226 & 227 of the Constitution of India)



1. Smt. Neena Kohli (female) aged about 67 years, W/o Shri
   Satish Kumar Kohli, R/o Old No. 25 Inder Road, New No.
   45/31/& 45/2 Inder Road, Dehradun permanent R/o 290-L-
   Model Town, Jalandhar.

2. Smt. Amisha Kohli (female) aged about 37 years, W/o Shri
   Amit Suri, R/o Old No. 25 Inder Road, New No. 45/31/ &
   45/2 Inder Road, Dehradun permanent R/o W-M 49, Bastiguja,
   Jalandhar.
                                         .................Petitioners
                     Shri Neeraj Garg, Advocate for the petitioners

                               -Versus-

Mohan Singh S/o Shri Raghuraj Singh, R/o Village Hairi, Tehsil-
Samrala, District-Ludhiana, Punjab through power of attorney
Shri Padam Singh Rana S/o Late Shri Hari Singh R/o Garhi
Cantt, Nimbuwala, District- Dehradun.
                                            .........Respondent
                   Shri Sagar Kothari, Advocate for the respondent


Sri S.K.Mishra, J.

Date of Hearing and Judgment: 17.11.2021

1. Heard Shri Neeraj Garg, Advocate for the petitioners and Shri Sagar Kothari, Advocate for the respondent.

2. Petitioners, being the plaintiffs in Original Suit No. 260 of 2016, have assailed the order dated 28.09.2019 passed by 8th Addl. District Judge, Dehradun in Civil Revision No. 73 of 2019 setting aside the order passed by 3rd Addl. Civil Judge (SD), Dehradun

rejecting the application for amendment in the counter claim filed by the defendant - respondent, herein.

3. The facts of the case are as follows: the plaintiffs - petitioners, herein, instituted an Original Suit No. 260 of 2016 before the learned Civil Judge (SD), Dehradun seeking a decree of permanent prohibitory injunction against the defendant - respondent, herein. Plaintiffs claimed that suit land was bequest to them by Shri Amarnath Kohli by virtue of registered WILL dated 28.08.2006 and he died on 19.06.2012. It is further alleged that the plaintiffs are in possession of the property. One day, defendant and his associates came to the property and created disturbance and threatened them to vacate the property. On 13.05.2016, the defendant after putting his appearance in the case, filed his written statement along with counterclaim denying the averments of the plaint and contended that an agreement to sell was executed in favour of the defendant by Shri Amarnath Kohli on 04.04.2012 and he paid a part of the amount, as earnest money and he claimed to be in possession of the land.

On 30.05.2016, learned Civil Judge (SD), Dehradun, allowed the application of the plaintiffs for temporary injunction against the defendant holding that prima facie, plaintiffs have proved their possession over the property, in question. On 17.09.2016, the Civil Judge (SD), Dehradun framed issues in the aforesaid suit and it was fixed for hearing on 18.10.2016.

On 22.11.2017, the defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908, herein after referred as code for brevity, for amendment in the counterclaim, inter alia, averring that on 25.10.2017, when the attorney holder of

the defendant reached the disputed property plaintiff no. 2, her husband Shri Satish and one Shri Rakesh Tyagi were present there and they broke the lock put by the defendant and have put their own lock. Accordingly, defendant sought amendment to the effect that relief of permanent prohibitory injunction be deleted and instead relief of mandatory injunction be substituted.

On 30.05.2016, plaintiffs filed their objection to the amendment application claiming that it was not bona fide. It is also claimed that amendment application has been filed to delay the progress of the suit.

On 31.05.2019, the 3rd Addl. Civil Judge (SD), Dehradun rejected the amendment application of the defendant.

Aggrieved by the said order, the defendant preferred a revision under Section 115 of the Code before the learned District Judge, which was registered as Civil Revision No. 73 of 2019. The said revision was transferred to 8th Addl. District Judge, Dehradun.

On 28.09.2019, the learned Revisional Court set aside the order passed by the Addl. Civil Judge (SD), Dehradun and allowed the amendment application of the defendant.

4. At the time of hearing of this writ petition, Shri Neeraj Garg, learned counsel for the petitioners fairly submits that the issue of bar of amendment in the counterclaim on the ground of arising subsequent cause of action, after filing of the counter claim has never been raised either before the learned Civil Judge (SD) or before the Revisional Court. Such a plea has been raised for the first time before this Court.

5. Learned counsel for the petitioner relying upon the several judgments, contends that the amendment in the counterclaim, after filing of written statement and counter claim, deleting the prayer for prohibitory injunction and adding the prayer of mandatory injunction, is barred by the provisions of the Code of Civil Procedure, if both the provisions i.e. Order 6 Rule 17 and Order 8 Rule 6A are read together. For the purpose of convenience both the aforesaid provisions are quoted below:

"Order 6 Rule 17 CPC - Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that is spite of due diligence, the party could not have raised the matter before the commencement of trial.

Order 8 Rule 6A - Counter-claim 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 counter-claim 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 counter- claim is in the nature of a claim for damages or not :

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) 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.

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

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

6. Shri Neeraj Garg, learned counsel for the petitioner laying emphasis on the expression of words mentioned in Order 8 Rule 6A of CPC "xxx.... 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....xxx" states that such a plea of mandatory injunction cannot be taken by the respondent after filing of the written statement i.e. after filing of defence by defendant. So he contends that anything that is prohibited directly cannot be allowed to be made or incorporated by way of amendment indirectly. In the case of Bollepanda P. Poonacha and another Vs. K.M. Madapa reported in (2008) 13 SCC 179 similar issue was raised before the Hon'ble Supreme Court and the Hon'ble Supreme Court in that case has examined the powers of Civil Court under Order 6 Rule 17 of the Code for allowing the amendment application, after filing of written statement and counterclaim, even in that proceedings while setting aside order

allowing the amendment application. However, the facts of that case are totally different from this case. In the case Bollepanda (supra), the amendment application was filed in the written statement, after the delivery of the defence for incorporating the claim, which is expressly barred by Order 8 Rule 6A of the Code. The ratio decided by the Hon'ble Supreme Court in that case does not squarely cover the facts of this case.

7. In another case that is Ashok Kumar Kalra Vs. Wing Commander Surendra Agnihotri and others, reported in (2020) 2 SCC 394, the Hon'ble Supreme Court has held that the Court has discretionary power to consider such a belated counter claim, filing of counter claim with substantial delay even though, period under the Limitation Act, therefor, had not elapsed, should be allowed. A balanced approach of the Court in exercise of discretionary power when the counter claim is filed after submission of written statement.

8. In Paragraph 18 of the aforesaid judgment, the Hon'ble Supreme Court has held that 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 of the Code 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 counterclaim, the provision itself become 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, the Supreme Court further held that

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 Supreme Court further held, 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 sub-serve 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 court. 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, the Supreme Court further held that they 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 Code.

9. Therefore, it is argued by the learned counsel for the petitioner that this is a fit case, where the Revisional Court's order should be set-aside and the original order passed by the Additional Civil Judge, (SD) should be restored. Even though, the order was passed by the Civil Judge (SD), Dehradun on a different consideration and not on that being raised for the first time before this Court.

10. The learned counsel for the opposite party Mr. Sagar Kothari on the other hand relies on a reported judgment of the Allahabad High Court in the case of "Smt. Tamijan Bani Vs. Sri Ahmad Hussain, 2009 SCC Online All 1034". The facts of the reported case of the Allahabad High Court are similar to this case. In that case also there was a prayer for injunction but during the pendency of the suit, the defendant claimed that they have been dispossessed from the property, and they have sought an amendment in the prayer portion of the counter claim for recovery of possession of the land. After discussing of the various precedents like the case of "Sudhir Kumar Wadhwa v. 4th Additional District & Sessions Judge, Shahjahanpur and other, (1996) 28 ALR 209", the judgment of the Bombay High Court in "Ganu v. Manik and another, 2003 SCC online Bombay 80" and after taking into consideration, the provisions of Order 8 Rule 6-A of the Code, the Single Bench of Allahabad High Court has held as follows:-

"It is noteworthy that time and again right from the decision of the Privy Council till date our courts have continuously favoured a liberal approach towards amendments. The amendment sought does not fall within the exception to the Rule. A counter-claim would even otherwise survive if the plaintiff chooses to withdraw her claim in such a situation read with the amended provisions which have been brought about in the Code. The nature of the amendment as sought for in the present case cannot be said to be barred by the provisions of Order VIII Rule 6-A of the Code".

"In the present case the nature of the amendment does not amount to a fresh counter claim so as to attract the bar of

Order VIII Rule 6-A of the Code. The nature of the claim is more in the nature of an amendment as emphasised under Order VI Rule 17 of the Code or the bringing of pleadings on record, which is otherwise permissible in Order 8 Rule 9 of the Code. The nature and claim of the counter-claim in essence remains the same and therefore, the decision as relied by the learned counsel for the petitioner does not apply on the facts of the present case. The writ petition is accordingly dismissed".

In applying all the provisions in this case, this Court is of the opinion that when the counter claim was filed there was no order of the Court regarding temporary injunctions. Only after filing of the counter claim on 13.05.2016, an order of injunction has been passed against the defendant. The defendant claimed that when his power of attorney went to the disputed property on 25.10.2017 the plaintiffs broke the lock put by the defendant and have put their own lock.

11. So, it is apparent from the records that there is a reason for plea by the defendant that during the pendency of the suit that is after filing of the counter claim and after passing of the order of temporary injunction by the Civil Judge (Sr. Div.) a cause of action arose and for which the prayer he had made in the counter claim has become infructuous and that he wants to substitute the prayer by a proper prayer i.e. a prayer for mandatory injunctions.

12. This Court is of the opinion that Courts in this country have adopted a liberal approach towards amendment. It is also trite law that wherever procedural law is pitted against as substantive rights, the procedural law being the handmaid of substantive law

and substantive rights should not be given too much of importance and in a case like this where the defendant claimed that the cause of action arose after passing of the injunction and much after filing of the counter claim, then an amendment in the prayer of the counter claim, not introducing any new fact raising a further right on the property, should not have been disallowed by the learned Civil Judge, (Sr. Div), Dehradun. This Court is of the opinion that in the interest of substantial justice, the amendment application should be allowed and has been rightly allowed by the Revisional Court i.e. the learned VIIIth Additional District Judge, Dehradun. This Court finds no reason to interfere with the order passed by the Revisional Court, in exercise of Certiorari jurisdiction under Article 226 and superintending jurisdiction under Article 227 of the Constitution of India.

13. Hence, this petition is dismissed being devoid of merits.

14. There shall be no order as to costs. Urgent certified copy of this order be supplied to the learned counsel for the parties, as per Rules.

(S.K.Mishra) Judge

A/-