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Madhya Pradesh High Court · body

2016 DIGILAW 767 (MP)

Hariram s/o Mallu v. Patiram s/o Mallu Kunvi

2016-09-01

SANJAY YADAV

body2016
ORDER : Sanjay Yadav, J. 1. With consent of learned counsel for the parties, the matter is finally heard. 2. Defendant vide this Writ Petition under Article 227 of the Constitution of India calls in question order dated 07.09.2013 passed in Civil Suit No. 31-A/2011; whereby, the trial Court has dismissed two applications filed by the petitioner, one under Order 6, Rule 7 and the another under Order 8, Rule 6A Code of Civil Procedure, 1908. 3. Vide application under Order 6, Rule 17 CPC, the defendant sought leave to incorporate the pleadings vide paragraph 5A explaining therein that they had no knowledge about the execution of sale deed dated 31.01.1967 executed by Mauji as the plaintiff and the defendant were minor. As the sale deed was without any consideration was never put to effect and the mauji continued to remain in possession thereof. That since the alleged sale deed dated 31.01.1967 was not put to effect a suit on the basis thereof is baseless. 4. The trial Court however, rejected the application on the ground that the trial has commenced. Whereas, the fact was that the plaintiff’s witness was yet to be examined. It has been held in Baldev Singh and others v. Manohar Singh and another: (2006) 6 SCC 498 ; “17-Before we part with this order, we may also notice that proviso to Order 6, Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6, Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. That apart, commencement of trial as used in proviso to Order 6, Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6, Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.” 5 The contention that the amendment would result in inconsistent plea is taken note of and rejected at the outset. In view whereof, the impugned order cannot be given stamp of approval and is set aside. The application filed by the petitioner seeking amendment in the written statement is allowed. Let the amendment be carried out within 15 days. The plaintiff would be at liberty to seek consequential amendment within 15 days there hence, failing which the right shall stand closed. 6. Vide impugned order another application under Order 8, Rule 6A CPC has been dismissed. Whereby, counter claim proposed by the defendant has been declined. The reasons which find mention are: “ mHk;i{k ds rdZ Jo.k fd;s x;s izdj.k dk voyksdu fd;k x;kA izdj.k esa izfroknhx.k dks Li”Vhdj.k ds lkFk iqu% vkosnu is’k djus ds fy;s funsZ’k fd;s x;s Fks u fd izfrnkok is’k djus ds fy;sA ;g Hkh fd fookfnr Hkwfe ij mHk;i{k ds ukuk ekSth dkfot jgs ekSth dh e`R;q ds ckn izfroknhx.k ,oa oknh dk muds tehu ij ekrk dk fgLlk gksus ij fookn fd;k x;kA oknh ,oa izfroknhx.k HkkbZ&HkkbZ gS ,d gh ifjokj ds lnL; gS vr% ,d O;fDr dk dCtk lHkh O;fDr dk dCtk ekuk tkosxkA vr% ,sls oknksa esa izfrnkok izpyu ;ksX; u gksus ls izLrqr djus dh vuqefr iznku dh tk ldrhA vr% izfroknhx.k dk vkosnu izfrnkok izLrqr djus dk mfpr u gksus ls 100@& ds ifjokn ij fujLr fd;k tkrk gSA ” 7. The reasons besides cryptic are erroneous. 8. The reasons besides cryptic are erroneous. 8. Sub-Rule (1) of Rule 6 A of order 8 CPC provides for that 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 filing of the suit but before the defendant had delivered his defence or before the time limited for delivery the defence has expired, whether such counter claim is in the nature of a claim for damages or not. It has been held in Jag Mohan Chawla and another v. Dera Radha Swami Satsang and others: (1996) 4 SCC 699 . “5. ........ In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words “any right or claim in respect of a cause of action accruing with the defendant” would show that the cause of action from which the counterclaim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. ......... In other words, a defendant can claim any right by way of a counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit.” 9. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit.” 9. The trial Court, in the case at hand is thus, not justified in rejecting the application saying that the plaintiff and defendant are brothers and the possession over the property belonging their maternal grandfather could be treated as of one person and thereafter counter claim is not tenable. 10. Though at one stage during course of hearing this Court was inclined to remand the matter for fresh consideration of the application under Section 8 Rule 6 A CPC construing that the cause of action has not been disclosed. However, since cause of action is bundle of facts, close reading of the pleading discloses the cause which has given the rise to the defendant to file counter claim. Therefore, this Court refrains from remitting the matter. Instead, the application under Order 8, Rule 6 A is allowed. The plaintiff/respondent would be at liberty to file his written statement. 11. The petition is allowed to the extent above. However, no costs.