Madhya Pradesh High Court
Rakesh Kumar Dubey vs Anil Kumar Jain on 22 November, 2016
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W. P. No.18821/2016
W. P. No.18821/2016
22.11.2016
Shri Aman Chourasia, learned counsel for the
petitioner.
Heard on admission.
The question as to whether a counter claim could
be entertained after the issues are framed and the
plaintiff has closed the evidence is no more res integra
and is settled at rest by the Supreme Court vide
decision in Rohit Singh and other v. State of Bihar (now
State of Jharkhand) AIR 2007 SC 10 wherein it is held-
"15- ............ A counter-claim, no doubt, could
be filed even after the written statement is
filed, but that does not mean that a counter-
claim can be raised after issues are framed and
the evidence is closed. Therefore, the
entertaining of the so called counter-claim of
defendants 3 to 17 by the trial court, after the
framing of issues for trial, was clearly illegal
and without jurisdiction. On that short ground
the counter- claim so called, filed by defendants
3 to 17 has to be held to be not maintainable."
In the case at hand, the petitioners are
defendants in a suit for declaration of easementary
rights and permanent injunction sought leave to set up
the counter claim for removal of encroachment. The
counter claim, as evident is being set up after the
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W. P. No.18821/2016
plaintiff has started his evidence. The trial Court vide
impugned order; declined to entertain the counter
claim being at belated stage.
It has been held in South Konkan Distilleries and
another v. Prabhakar Gajanan Nayak and others:
(2008) 14 SCC 632-
"23- The learned counsel for the appellants,
however, relied on a decision of this Court
reported in AIR 1967 SC 96 [A.K.Gupta & Sons
Ltd. vs. Damodar Valley Corporation] in order
to satisfy us that the prayer for amendment for
a sum already specified in the plaint or such
other amount as was to be determined after
accounts, ought to be allowed though the suit
for recovery of money was barred when the
amendment was sought. In our view, that
decision of this Court stands on a different
footing altogether and will not be of any help to
the appellants. In that decision, it was made
clear that the amendment of pleadings
introducing new case cannot be allowed, if suit
on such case is barred. In that decision also, it
was made clear that in the matter of allowing
amendment of pleadings, the general rule is
that a party is not allowed by amendment to set
up a new case or a new cause of action,
particularly when a suit on the new cause of
action is barred. However, an exception was
given in that decision saying where the
amendment does not constitute the addition of a
new cause of action or raise a different case,
but amounts merely to a different or additional
approach to the same facts, the amendment is
to be allowed even after expiry of the statutory
period of limitation. We have already observed
that there is no quarrel on the proposition
enunciated by this Court in the aforesaid
decision. As held hereinabove, the date on
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W. P. No.18821/2016
which the application for amendment of the
written statement and the counter claim was
filed, the claim was already barred by
limitation. Therefore, if a fresh suit was filed on
the amended claim, there cannot be any dispute
that the same could also be barred by the law of
limitation. Under these circumstances and
applying also the principles laid down in the
aforesaid decision in the case of A.K.Gupta
(supra), in the facts of this case, we are of the
view that since even on the date of filing of the
application for amendment of the written
statement and the counter claim, the claim was
barred and no fresh suit could be filed on such
amended claim and, therefore, the two courts
below had acted within their jurisdiction in
rejecting the prayer for amendment of the
written statement and the counter claim. It may
not be out of place to mention that following the
principle laid down in A.K.Gupta's case (supra),
this Court again in Vineet Kumar vs. Mangal
Sain Wadhera [1984 (3) SCC 352] expressed
the same view to which we have already
adhered to."
Similarly in Bolepanda P. Poonacha and another v. K.
M. Madapa: 2008 (3) MPHT 110, it is held-
"10- The provision of Order VIII Rule 6A must
be considered having regard to the
aforementioned provisions. A right to file
counter claim 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.
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 counter claim 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 4 W. P. No.18821/2016 Ryaz Ahmed (supra) is based on the decision of this Court in Baldev Singh and Others Vs. Manohar Singh and Another [(2006) 6 SCC 498].
Further, the facts of the instant case are distinguishable from those of the Sri Ryaz Ahmed (supra). In that case, the proposed amendment by the defendant was allowed to be filed as he wanted to make a counter-claim by way of a decree for grant of mandatory injunction to remove the built up area on the disputed portion of land. It was therein held that instead of driving the defendant to file a separate suit therefor, it was more appropriate to allow the counter-claim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counter-claim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed.
Baldev Singh (supra) is not an authority for the proposition that the Court while allowing an application for amendment will permit the defendant to raise a counter claim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6A. Some of the decisions of this Court in no uncertain terms held it to be impermissible.
See Mahendra Kumar Vs. State of Madhya Pradesh [(1987) 3 SCC 265], Shanti Rani Das Dewanjee (Smt.) Vs. Dinesh Chandra Day (Dead) by Lrs. [(1997) 8 SCC 174]."
Thus besides that the counter claim cannot be set up after the issues are framed and the evidence is closed. It is also not permissible to set up the time barred claim.
The decision relied on by the petitioner in A. K. Gupta and sons Ltd. v. Damodar Valley Corporation: AIR 1967 SC 96,Vineet Kumar V. Mangal Sain Wadhera: (1984) 3 SCC 352 and Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally and others: (2009) 15 SCC 528 are of no 5 W. P. No.18821/2016 assistance to the petitioner in given facts of present case.
Consequently since the impugned order does not suffer the vice of perversity, no indulgence is caused.
Petition fails and is dismissed.
(SANJAY YADAV) JUDGE Loretta