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2012 DIGILAW 2702 (ALL)

MAN SINGH v. DISTRICT JUDGE, GHAZIPUR

2012-11-22

PANKAJ MITHAL

body2012
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Raghvendra Shankar Srivastava, learned counsel for the petitioner. One Ashok Kumar Singh and Lallan Singh together instituted a suit for a decree of permanent prohibitory injunction against Mansingh and Krishna Singh in respect of Araji No. 375/2 area .180 aire shown by letter A, B, C, D, E, F, G, H, I, J and K of the plaint map so as to restrain them from interfering in their possession and use of it. In the said suit subsequently some other defendants were also added. The petitioner is defendant No. 1 in the said suit and had filed his written statement therein on 3.8.2011. 2. Petitioner subsequently applied for amendment of the written statement so as to raise a counter-claim as against defendant Nos. 3 to 6 in the suit. The amendment was allowed by the Court of first instance vide order dated 28.11.2011 but the said order has been set aside by the revisional Court vide order dated 13.8.2012. Petitioner has filed this petition challenging the revisional order setting aside the amendment in the written statement permitting counter-claim against defendant Nos. 3 to 6. 3. Order VIII Rule 6A of the Code of Civil Procedure provides for a counter claim to be made by the defendant in the suit. It reads as under : “6A. Counter-claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleadings 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)................. (3)............. (4)................” A plain reading of Order VIII Rule 6A(1) makes it clear that a defendant in a suit is entitle to set up by way of counter-claim, a claim against the plaintiff in respect of the cause of action accruing to the defendant against the plaintiff. (2)................. (3)............. (4)................” A plain reading of Order VIII Rule 6A(1) makes it clear that a defendant in a suit is entitle to set up by way of counter-claim, a claim against the plaintiff in respect of the cause of action accruing to the defendant against the plaintiff. In view of the plain and simple language used in the aforesaid provision it is ample clear that a counter-claim by the defendant in the suit can only be raised against the claim of the plaintiff that too in respect of cause of action accruing to the defendant against the plaintiff. It does not permit filing of a counter claim against the other defendants to the suit. 4. In other words the counter-claim by a defendant has to be against the claim of the plaintiff and in respect of the cause of action accruing to the defendant against the plaintiff. Thus no counter claim against the co-defendants in the suit is permissible in law. 5. Learned counsel for the petitioner has relied upon several decisions of this Court wherein it has been laid down that amendment to the pleadings are permissible at any stage and that amendment should not be refused simply for the reason that it has been moved belatedly. This is not the position in the present case as here the amendment sought itself is not permissible under law in view of Order VIII Rule 6A of the Code of Civil Procedure. In view of aforesaid legal position the revisional Court has rightly set aside the order of the trial Court allowing the amendment in the written statement permitting counter-claim of the petitioner defendant No. 1 against defendant Nos. 3 to 6. The revisional order impugned in the petition does not suffer from any error of law or jurisdiction which may warrant exercise of extraordinary jurisdiction. The writ petition is devoid of merit and is dismissed. ——————