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2012 DIGILAW 12 (UTT)

SOM v. SAMAY SINGH

2012-01-03

TARUN AGARWALA

body2012
JUDGMENT Heard Sri Mahavir S. Tyagi, the learned counsel for the petitioners and Sri I.P. Kohli, the learned counsel for the respondent. 2. The plaintiff instituted a suit for prohibitory injunction. The written statement was filed by the defendants on 10th February, 2004. Subsequently, an amendment application dated 16.09.2004 was filed to amend the written statement by adding a counter claim. This application was rejected by the trial court, against which, a revision was preferred, which was also dismissed. The defendants, being aggrieved by the aforesaid two orders, have filed the present writ petition. 3. The trial court rejected the counter claim of the defendants on the ground that it was filed belatedly at the stage when the evidence of the plaintiffs had already been led and therefore, such counter claim was not permissible at a belated stage. Before this Court, the plaintiff conceded that the counter claim was within the period of limitation. Consequently, if the petitioners chose to file a separate suit with regard to the counter claim, the same could be instituted as it was within the period of limitation. 4. In Ramesh Chand Ardawatiya vs. Anil Panjwani, AIR 2003 SC 2508, the Supreme Court held that a counter claim can be raised and brought on record by a subsequent pleading and that the provision of Order 8 Rule 9 of the C.P.C. does not create a bar. The Supreme Court held as under: “Looking to the scheme of O. 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 civil suit. Firstly, the written statement filed under R. 1 may itself contain a counter claim which in the light of R. 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 R. 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 R. 9. Thirdly, a counter-claim may be filed by way of a subsequent pleading under R. 9. In the later two cases the counter-claim though referable to R. 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in Court either under O. VI R. 17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O. VIII R.9 of the C.P.C. if sought to be placed on record by way of subsequent pleading.” 5. The Supreme Court in the aforesaid case held that the purpose of filing a counter claim was to avoid multiplicity of judicial proceedings. The Supreme Court further held as under: “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 dispute 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 could 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.” 6. In Hazari Lal and others vs. Brahma Nand and others, 2007 (1) ARC 377, the Allahabad High Court in a similar situation held that a counter claim, which is within the period of limitation, can always be brought on record by a proposed amendment. 7. In the light of the aforesaid, the Court is of the opinion that no prejudice was being caused to the plaintiff by the proposed amendment application since the counter claim could always be instituted by the petitioners by instituting a separate suit. 8. In the light of the aforesaid, the impugned orders passed by the trial court as well as the revisional court cannot be sustained and are quashed. The writ petition is allowed. 8. In the light of the aforesaid, the impugned orders passed by the trial court as well as the revisional court cannot be sustained and are quashed. The writ petition is allowed. The application of the petitioners to amend the written statement is also allowed subject to payment of cost of Rs.3000/- (rupees three thousand) which shall be deposited by the petitioners/defendants within four weeks from today and the same can be withdrawn by the plaintiff.