Allahabad High Court
Satyapal Singh vs Firm Swastik Plaza And 4 Others on 2 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4722
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 30 Case :- S.C.C. REVISION No. - 98 of 2018 Revisionist :- Satyapal Singh Opposite Party :- Firm Swastik Plaza And 4 Others Counsel for Revisionist :- Adarsh Bhushan Counsel for Opposite Party :- Pratik J. Nagar,Supriya Pratik Nagar Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Anjani Kumar Singh holding brief of Sri Adarsh Bhushan, learned counsel for the revisionist and Sri J. Nagar, learned Senior Counsel assisted by Sri Prateek J. Nagar, learned counsel appearing for the opposite parties.
2. Present revision has been filed challenging the judgment and decree dated 26.7.2018 passed by Additional District Judge / Session Judge, Court No. 11, Varanasi in SCC Suit No. 13 of 2016 (Firm Swastik Plaza through its Parters vs. Satyapal Singh and another).
3. By the impugned order the application paper no. 54-Ka filed by the revisionist under Order 6 Rule 17 CPC was rejected. Though the amendment application itself a counterclaim was also sought to be included by the defendant-revisionist (hereinafter referred to as the defendant). The counterclaim was rejected on the ground that it is a time barred claim and has been filed through the amendment application, which has been filed after the evidence of DW-1 is over. It was further observed that the amendment sought are not necessary for the disposal of the case.
4. Submission of learned counsel for the revisionist is that the yardstick for allowing amendment in written statement is different and a more liberal approach is to be adopted while allowing amendment in the written statement; the amendment can be allowed at any stage and the amendment so sought only elaborates or explains the contents of the written statements only and therefore, is liable to be allowed; the lawyer was intimated about the pleadings that are sought to be included, however, the lawyer has committed fault in not including the same at the time of filing the written statement; by means of amendment a prayer for counterclaim is being sought to be added, which is based on the factual assertions already made in the written statement and such counterclaim is not being suddenly added and as a matter of fact the same is also existing in the written statement; the delay cannot be the ground for rejecting the amendment or the counterclaim; the counterclaim is as per the provisions of Order 8 Rule 6 A to G CPC and therefore, is liable to be allowed; the court below has wrongly noted that the evidence is closed; the issues have not been framed and due to non-framing of the issues the issue of counterclaim could not be placed predominantly as an issue is to be decided in the said list; and lastly, it was submitted that the law as relied on by the court below is not applicable in the present case.
5. In support of his argument learned counsel for the revisionist has placed reliance on judgments in the cases of Ramniwas Bansilal Lakhotiya and another vs. Sunil Pannalal Agrawal and others 2015 (1) AIR Bom R 427, Pankaja and others vs. Yellappa (D) by Lrs. and Ors 2004 (6) SCC 415, Sharad Dinkar Padalkar and others vs. Sugandha Balasaheb Jadhav and others 2014 (1) ABR 107, Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others 2007 (5) SCC 602, Sushil Kumar Jain vs. Manoj Kumar and others 2009 (10) SCC 434, Baldev Singh and others vs. Manohar Singh and others 2006 (6) SCC 498 and Vijay Prakash Jarath vs. Tej Prakash Jarath 2016 (11) SCC 800.
6. Per contra, learned counsel for the opposite parties has supported the impugned order and submitted that the rent is due from March, 2014 and the limitation has to be taken latest by March, 2014 on which date he got the possession and came to know about the alleged shortcoming of the buildings and allegedly carried out necessary changes; in paragraph 9 of the plaint it has been clearly stated that the provisions of the U.P. Act 13 of 1972 are not applicable and no amendment has been sought in paragraph 9 of the written statement, wherein this fact has not been disputed; mistake of a counsel cannot be the ground for seeking time barred or belated amendment or seeking belated counterclaim; even in the counterclaim that is being sought by means of the amendment two dates have been given namely 4.3.2010 and 20.10.2012 and as such the relief claimed is clearly barred by limitation; the relief so being claimed cannot be granted in view of Section 41 of the Specific Reliefs Act and for any other assertions or relief that is being sought to be added or included, a suit for injunction can always be filed by the defendant and therefore, the same cannot be included as a counterclaim.
7. In support of his argument learned counsel for the opposite parties has placed reliance on judgments in the cases of M/s Narendra Road Lines Pvt. Ltd. vs. Rashtriya Ispat Nigam Limited 2016 (2) ADJ 640, Bollepanda P. Poonacha and another vs. K.M. Madapa 2008 (13) SCC 179, Ramesh Chand Ardawatiya vs. Anil Panjwani 2003 (7) SCC 350, J. Samuel and others vs. Gattu Mahesh and others 2012 (2) SCC 300, Uma Shanker vs. Smt. Chandra Kala and another 2015 (2) CAR 544 (All), Rama Nand and others vs. Amrit Lal and others 2012 (4) AWC 4345, Joginder Tuli vs. S.L. Bhatia and another 1997 (1) SCC 502 and Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawal and others 1964 (0) AIR(SC) 11.
8. In rejoinder learned counsel for the revisionist submitted that all such objections that are being raised by the plaintiff can be raised by the plaintiff in trial as the counterclaim has to be treated like plaint and question regarding limitation can be seen during trial only in which the plaintiff will have the suitable opportunity.
9. I have considered the rival submissions and have perused the record.
10. Before proceeding further it would be appropriate to take note of Order 6 Rule 17 CPC and Order 8 Rule 6A to 6G CPC, which are quoted as under:-
"17. 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial.
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.
6B. Counter-claim to be stated-- Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
6C. Exclusion of counter-claim-- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.
6D. Effect of discontinuance of suit-- If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.
6E. Default of plaintiff to reply to counter-claim-- If the plaintiff makes default in putting in reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter-claim as it thinks fit.
6F. Relief to defendant where counter-claim succeeds-- Where in any suit a set-off or counter-claim is established as defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.
6G. Rules relating to written statement to apply-- The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim."
11. From perusal of record I find that the sole explanation given for delay in filing the amendment application under Order 6 Rule 17 CPC, whereby counterclaim under Order 8 Rule 6A CPC was also sought to be added, is that earlier counsel was explained and given entire evidence by the defendant but he did not include the same in his written statement and did not produce the evidence. This explanation has given repeated in the application at several places and thus, it is very much clear that the sole explanation given for such delayed amendment is that it was the fault of the counsel. It is the settled law that this cannot be the ground of belated amendment. Mistake of a lawyer cannot be a ground for allowing amendment.
12. A reference may be made to paragraph 6 in the case of Rama Nand (supra).
"Having heard Sri Shiv Nath Singh the facts of this case leaves no room for doubt, that the petitioners who are the defendants were duly represented by a lawyer for the past several years, who consciously made an endorsement on 30.10.2007 that he does not want to file any additional written statement. The evidence was led thereafter and the witnesses were cross-examined. It is after some new lawyer who was engaged at the time of hearing that dawned on the petitioners that a mistake has been committed by not filing an additional written statement. The mistake of the lawyer of the petitioners as alleged, in my opinion, is not a mistake at all. It was a conscious endorsement by the lawyer not to file an additional written statement. Apart from this, the evidence with regard to the plea raised in the amended plaint has been adduced by the defendants. Thus, they cannot plead either mistake on behalf of the lawyer or on their behalf also. The petitioners cannot be permitted to raise a plea that their lawyer on a wrong advise made the endorsement. If this is condoned, then in every case a litigant will unscrupulously come forward with this plea and get the case reopened on one pretext or the other. The subsequent engagement of a counsel who has a better understanding of law cannot be a ground to plead that the earlier counsel was incompetent, particularly, in this case where an endorsement in writing has been made by the lawyer that he does not wish to file any additional written statement."
13. Insofar as the submission that since issues were not framed, therefore, the issue of counterclaim could not be placed before the court is also misconceived inasmuch undisputedly the proceedings pending before the court below are of summary in nature and in view of the provisions of Order 50 (1) (iii) CPC no issues are required to be framed.
14. Insofar as the submission of learned counsel for the revisionist that regarding filing of the counterclaim subsequent to the framing of issues is concerned, the law on this issue is well settled and there is no quarrel with the same that the counterclaim can be filed after framing of issues, as settled by the judgment of Hon'ble Apex Court, as referred to by the learned counsel for the revisionist. However, it is also settled that the counterclaim must accrue against the plaintiff either before or after filing of the suit but definitely before the defendant has delivered his defence or before time limited for delivering his defence has expired. The judgment of Hon'ble Apex Court as referred to by learned counsel for the revisionist are to the effect that the same can be filed after framing of issues also. However, this Court is of the opinion that the entire case law as placed before this Court clearly indicates that in each and every case the stage of filing of counterclaim before the court at a subsequent stage, i.e. a counterclaim, which was not filed alongwith written statement, has to be considered and the filing of the counterclaim through an amendment was not accepted in any of the case law after the defendant witness has started or concluded.
15. It is pertinent to note that although the provisions of Order 6 Rule 17 CPC are in regard to the amendment that is being sought in pleadings by either of the parties, however, the provisions of Order 8 Rule 6A to Rule 6G CPC are in respect of counterclaim only, which obviously means that they are made for the purpose of avoiding multiplicity of litigation at the instance of the defendant and such provisions are clearly provided to help the defendant to make his counterclaim, however, with a clear rider that the same can be made where such cause of action must have accrued against the plaintiff either before or after filing of the suit but definitely before the defendant has delivered his defence or before time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. The provisions of Order 8 Rule 6A CPC has been so interpreted by Hon'ble Apex Court so as to enable a defendant to make his counterclaim before the evidence stage or even till the stage of the plaintiff's defence only and the reason appears to be obvious that the plaintiff should not be put to in disadvantageous position after he has concluded his evidence.
16. A reference may be made to two judgments of Hon'ble Single Judge of this Court, wherein the counterclaim was sought through the amendment has been considered and discussed in detail and the same were rejected. A reference may be made to the judgment of this Court in the case of Narendra Road Lines Pvt. Ltd. (M/s.) vs. Rashtriya Ispat Nigam Limited 2016 (1) ARC 702 and the recent judgment in Wing CRD Surendra Agnihotri vs. Sri Moti Ram Jain and others 2018 (3) ARC 439.
17. Since the law on this issue is settled and there is no dispute about such settled law, I am not inclined to burden my judgment by referring to those judgments as has already been considered by this Court for the reason that there is no dispute about such settled law. In both the judgments the judgments as referred to by the learned counsel for the revisionist have been taken care of.
18. A reference may, however, be made to the judgment of Hon'ble Apex Court in the case of Vijay Prakash Jarath (supra), wherein the judgment of the High Court, whereby the counterclaim filed after two and half years after framing of the issues was set aside and the counterclaim was permitted by the Hon'ble Apex Court with liberty to the plaintiff to raise all pleas open to him through his written statement, which is filed by the plaintiff to the counterclaim. In this judgment also the judgments cited by the learned counsel for the revisionist have been referred to and taken note of. However, it may also be noticed that in Vijay Prakash Jarath (supra) also in the suit plaintiff's evidence was still being recorded by the trial court when the counterclaim was filed, whereas in the present case admittedly the evidence of DW-1 is over. In this case Rohit Singh and others Vs. State of Bihar (Now state of Jharkhand) and others 2006 (12) SCC 734 was distinguished on the ground that in the evidence had already been concluded.
19. In the case of Baldev Singh (supra) the counterclaim was allowed as the trial has not yet begin.
20. In the case of Sushil Kumar Jain (supra) also no document was filed and even the evidence has not yet adduced as such the amendment sought was not covered by Order 6 Rule 17 proviso CPC.
21. In Usha Balashaheb Swami (supra) the amendment application filed under Order 6 Rule 17 CPC was allowed as the trial has not yet commenced.
22. In Sharad Dinkar Padalkar (Bombay High Court) (supra) also the trial has not yet begin.
23. Insofar as the submission of learned counsel for the revisionist that the limitation has to be seen at the time of trial and the amendment seeking counterclaim can be allowed by way of amendment is concerned, which was argued on the strength of judgment in the case of Pankaja (supra), suffice to note that in the abovenoted cases the amendment application filed under Order 6 Rule 17 CPC was allowed, wherein the relief sought was declaratory in nature and it was found that such relief is based on facts of the case and is thus, arguable question which can only be decided at the time of trial. Therefore, the facts of that case are entirely different from the present case, wherein the monetary settlement is being sought. As per three dates available on record i.e. 4.3.2010, 20.10.2012, as referred to in paragraph 17 (m) of the amendment application and March, 2014 as referred to in paragraph 5 of the plaint, clearly shows that the facts of the case are clearly distinguishable and since, admittedly, the parameters of a plaint has to be applied in the case of counterclaim, such counterclaim, which, on the face of record is time barred has to be rejected, whether the cause of action accrued before filing of the suit or after filing of the suit. Such exercise allowing delayed counterclaim has to be exercised judiciously and must not be given statutory or legislative intention. It is a settled law that a delayed counterclaim must be discouraged. A counterclaim, which is for the monetary settlement that too in a summary proceedings and is ultimately barred by limitation, cannot be slapped on the plaintiff merely on the ground that the issue of limitation is a triable issue as in such matters any suit, after keeping in mind that a counterclaim is treated like a plaint, therefore, would not at all be maintainable. This is not the intention of the law.
24. It may be relevant to note the law as settled by Hon'ble Apex Court in Ramesh Chand Ardawatiya (supra), frequently referred to in subsequent judgments (of course, considering the facts and circumstances of the case particularly the stage of the proceedings), paragraphs 26 to 28 whereof are quoted as under:-
"26. A perusal of the abovesaid provisions shows that it is the Amendment Act of 1976 which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of Rule 6A are-
"A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, ..... before the defendant has delivered or before the time limited for delivery of defence has expired...."
These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter claim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counter-claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter-claim can be allowed to be raised, for the counter-claim under Rule 6A must find its place in the written statement. The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set-off or counter-claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defended, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time.
27. We have already noticed that the defendant was being proceeded ex-parte. His application for setting aside the ex-parte proceedings was rejected by the Trial Court as also by the High Court in revision. In Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425, this Court held that in spite of the suit having been proceeded ex-parte the defendant has a right to appear at any subsequent stage of the proceedings and to participate in the subsequent hearings from the time of his appearance. If he wishes to be relegated to the position which he would have occupied had he appeared during those proceedings which have been held ex-parte, he is obliged to show good cause for his previous non-appearance. It was clearly held that unless good cause is shown and the defendant relegated to the position backwards by setting aside the proceedings held ex-parte, he cannot put in a written statement. If the case is one in which the Court considers that a written statement should have been put in and yet was not done, the defendant is condemned to suffer the consequence entailed under Order VIII Rule 10. The view taken in Sangram Singh (supra) by two-Judges Bench was reiterated and re-affirmed by three-Judges Bench in Arjun Singh v. Mohinder Kumar AIR 1964 SC 993. Certain observations made by this Court in Laxmidas Dayabhai Kabrawala v. Nandbhai Chunilal Kabrawala and Ors AIR 1964 SC 11 are apposite. It was held that a right to make a counter-claim is statutory and a counter-claim is not admissible in a case which is admittedly not within the statutory provisions. The crucial date for the purpose of determining when the counter-claim can be said to have been filed and pleaded as on par with a plaint in a cross suit is the date on which the written statement containing the counter-claim is filed. Save in exceptional cases a counter-claim may not be permitted to be incorporated by way of amendment under Order VI Rule 17 of the CPC.
28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed.
Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of "subsequent pleading" as there is no 'previous pleading' on record. In the present case, the defendant having felled to file any written statement and also having forfeited his right to filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim."
25. In a much cited subsequent judgment Bollepanda (supra) various previous judgments of Hon'ble Apex Court including the provisions of Order 6 Rule 17 CPC have been considered. Paragraphs 10, 11, 12, 13, 14 and 15 of the aforesaid judgment are quoted as under:-
"10. Order VI Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the proviso appended thereto (which is not applicable in the instant case), such applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an application for amendment of plaint. Order VIII Rule 9 again, subject to the statutory interdict enables a defendant to file additional pleadings.
11. 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 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].
12. 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.
13. 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].
14. In Gurbachan Singh Vs. Bhag Singh and Ors. [(1996) 1 SCC 770], this Court clearly held;
"3. ..... the limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damages or not."
15. A belated counter claim must be discouraged by this Court. See Ramesh Chand Vs. Anil Panjwani (2003) 7 SCC 350. 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 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 & Ors. Vs. M/s. Pioneer Builders, A.P. [(2006) 9 SCALE 520] and Steel Authority of India Ltd. Vs. Union of India & Ors. 2006 (9) SCALE 597 and Himmat Singh and Ors. Vs. I.C.I. India Ltd. and Ors., 2008 (2) SCALE 152."
26. In this abovenoted case also the delayed amendment seeking inclusion of counterclaim in the written statement was rejected.
27. In J. Samuel (supra) the Hon'ble Apex Court has held that the words 'due diligence' used in proviso to Order 6 Rule 17 CPC provides for test to determine whether the discretion to allow amendment could be exercised or not. The lawyer's mistake certainly could not be taken as 'due diligence'. The defendants herein are literate persons and doing business in an urban area and moreover, certain vague assertions have been made in the written statement, still a formal counterclaim was never made.
28. In view of the discussions made hereinabove applying the law as laid down by Hon'ble Apex Court, the stage of the trial becomes important. In the present case, the case is for rent and eviction filed under the provisions of the Provincial Small Causes Court Act, 1887 and is cognizable by Judge Small Causes Court, the proceedings whereof are admittedly summary in nature. The amendment sought after commencement of trial that too after the plaintiff's evidence was over and the evidence of DW-1 is also over, is clearly hit by Order 6 Rule 17 proviso CPC. Apart from that considering the provisions of the law of Order 8 Rule 6-A CPC, as discussed above, such counterclaim was made at the stage already referred to above, whereas in none of the judgments referred to above, any such counterclaim was allowed at this stage i.e. after the defence of DW-1 is also over. There can be no dispute about the settled law that although more liberal approach should be adopted for allowing amendment in written statement, however, one cannot be oblivious to the provisions of Order 8 Rule 6-A CPC and the law laid down by Hon'ble Apex Court that although the counterclaim can be allowed after framing of issues, however, as a rule delayed counterclaim should be rejected and discretion in allowing counterclaim has to be considered judiciously in the facts and circumstances of the case and thus, introduction of counterclaim by means of amendment, the provisions of Order 6 Rule 17 CPC and the law as laid down interpreting the said provisions exclusively case not be the sole criteria, however, any such amendment as such would be hit by proviso to Rule 17 of Order 6 CPC.
29. Learned counsel for the revisionist has also placed reliance on judgment of Bombay High Court in the case of Ramniwas Bansilal Lakhotiya (supra).
30. In view of the discussions made hereinabove I am in respectful disagreement with the same. In my opinion the plaintiff cannot be put to contest time barred litigation simply by saying that the issue of limitation is a triable issue and can be contested by filing written statement to the counterclaim, particularly in view of the facts of the present case, where none of the three dates as noted above, whether given by plaintiff or by the defendant covers the period of limitation for the purpose of settlement of monetary claim.
31. In view of the abovenoted discussions I do not find any legal infirmity in the order impugned herein, whereby the counterclaim filed after the evidence of DW-1 over has been rejected.
32. Present revision is devoid of merits and is accordingly dismissed.
Order Date :- 2.11.2018 Lalit Shukla