Narhari s/o. Vithalrao Khadap and others v. Gyanba s/o. Narsu Bhise and others
2000-03-23
V.K.BARDE
body2000
DigiLaw.ai
JUDGMENT - V.K. BARDE, J.:---The present petitioner filed Regular Civil Suit No. 84/78 in the Court of Civil Judge (Junior Division), Ambajogai, for perpetual injunction against the present respondents, on the ground that the plaintiffs were owners and possessors of the suit land, defendants were taking obstruction in his possession and they be restrained from taking obstruction. The defendants filed written statement and denied the title and possession of the plaintiffs. Later on, defendant No. 2, Babu, filed an application for amendment in the plaint contending that during the pendency of the suit, by taking advantage of the interim injunction Order, the plaintiffs had dispossessed the defendants and so, by way of counter claim, the defendant is seeking restoration of possession of the suit land. 2. The learned Joint Civil Judge (Senior Division), Latur, by his Order dated 25-10-1991, below Exhibits 122 and 127, in Regular Civil Suit No. 660/83, allowed the application for amendment by which the defendant has claimed counter claim of possession of the suit land. 3. Shri N.P. Patil, Counsel for the petitioners-original plaintiffs has argued that this was a suit for injunction with respect to immoveable property and in such suit, counter claim is not permissible. The counter claim is permissible only in money suit. In support of this contention, he has relied upon ruling of this Court, in the case of (Chandrakant v. Manikrao)1, 1988 Mah.L.R. 1488. 4. Shri N.B. Khandare, learned Counsel for respondent Nos. 2 and 3 original defendants, has argued that the amendment in the written statement is sought on the basis of provisions of Order VI, Rule 17 and Order VIII, Rule 8 of the Code of Civil Procedure, 1908. After filing of the written statement, the defendant lost possession and, therefore, he had to amend the suit and seek restoration of possession. 5. No doubt, the amendment is permissible as per Order VI, Rule 17 and Order VIII, Rule 8 of the Code of Civil Procedure, 1908. But when the amendment is by way of counter claim, then the provisions of Order VIII, Rule 6-A must be taken into consideration. The amendment in the plaint cannot be allowed to raise a counter claim when the original suit is not money suit.
But when the amendment is by way of counter claim, then the provisions of Order VIII, Rule 6-A must be taken into consideration. The amendment in the plaint cannot be allowed to raise a counter claim when the original suit is not money suit. In view of the consistent view taken by this Court, in this matter, as per the reported ruling above, the counter claim made by the defendant has to be rejected. 6. In the result, Civil Revision Application No. 52/1992 is allowed. The order dated 25-10-1991, passed by the learned Joint Civil Judge (Senior Division), Latur, below Exhibits 122 and 127, in Regular Civil Suit No. 660/83 is set aside. The application filed for amendment of the plaint to raise the counter claim, therefore, stands dismissed. 7. Rule absolute accordingly. The costs of this petition will be the costs in cause. Civil Revision Application allowed. -----