Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 368 (RAJ)

PARSU RAM v. JAGDISHCHANDRA

2017-02-01

PANKAJ BHANDARI

body2017
JUDGMENT : PANKAJ BHANDARI, J. 1. The petitioner has preferred this Writ Petition aggrieved by order dated 28.03.2015 vide which application filed by the defendant-petitioner under Order 6, Rule 17 CPC read with 151 CPC was rejected. 2. It is contended by counsel for the petitioner that the petitioner wanted to amend his written statement as well as the relief clause so as to insert counter claim, which he was entitled by law to do and the amendment could have been made at any stage. 3. It is contended by counsel for the petitioner that the Hon'ble Apex Court in Vijay Prakash Jarath v. Tej Prakash Jarath, 2016 (2) Civil Court Cases 293 (SC), has permitted taking of counter claim on record under Order 8, Rule 6A CPC after two and a half years of framing of issues. 4. The reliance has also been placed on Arvind Kumar Gupta & others v. Additional District Judge, Court No. 1, Hardoi 2012(4) Civil Court Cases 466 (Allahabad), wherein the Court observed that counter claim can be filed even after filing of the written statement. 5. Reliance has also been placed on Andhra Bank v. ABN Amro Bank N.V & Others, 2007 AIR SCW 4466, wherein the Hon'ble Apex Court observed that an amendment to introduce new defence is permissible. 6. Reliance has also been placed on Raghubir Singh & Ors. v. Tajinder Pal Singh & Ors., 2009(4) Civil Court Cases 755 (P & H), wherein the Court observed that counter claim can be filed even after filing of the written statement under Order 8, Rule 6A . 7. Counsel for the non-petitioners/plaintiffs has opposed the writ petition. His contention is that the application was filed under Order 6, Rule 17 CPC, and since there was absence of due diligence as mandated by Order 6, Rule 17 CPC, the court below has not committed any illegality in rejecting the application. 8. Counsel for the non-petitioners/plaintiffs has placed reliance on Luta Ram & Ors. v. Smt. Champa Devi & Ors., 2016 (3) DNJ (Raj.) 1368 and Meera Ben (Smt.) v. Amritlal & Anr., 2015(1) DNJ (Raj.) 431, wherein the Court observed that in absence of due diligence, which is required to be mandatorily established, application under Order 6, Rule 17 CPC cannot be allowed. 9. I have considered the contentions raised before the Court. 10. 9. I have considered the contentions raised before the Court. 10. Admittedly, the application was moved under Order 6, Rule 17 CPC. Order 6, Rule 17 CPC provides that 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. The proviso therein provides that application for amendment shall not be allowed if 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. 11. In the present case in hand, the suit was filed on 26.03.2012. The written statement was filed by the petitioner defendant on 09.07.2012 and the issues were framed. Affidavit in evidence was filed by the plaintiff and on fourteen occasions, the matter was adjourned for cross-examination of the plaintiff. The application under Order 6, Rule 17 CPC was filed on 10.03.2014. In the application, the petitioner has mentioned that the cause of action accrued to him on 26.03.2012, that is the date when the suit was filed and finally, it accrued to him in February, 2014 when the legal position was made clear to him. 12. Since, the defendant has mentioned in his application itself that the cause of action accrued to him in March, 2012, he was required to apprise the court regarding due diligence. There is not an iota of pleading with regard to due diligence in the aforesaid application. The trial court is required to deal with the application under the provisions, in which it is filed, and now the argument before the Court that the same should be dealt with as if filed under Order 8, Rule 6A CPC, cannot be entertained, more particularly because the fact that the defendant is in possession for last twenty years was mentioned by the defendant in his written statement and in para No.1 of the additional pleas. Issue No.4 with regard to the pleadings made in para No.1 of the additional pleas was also framed by the court. Therefore, the defendant has already pleaded before the court about his being in possession for last twenty years. Thus, the question of now permitting the defendant to amend his pleadings was out of question. 13. In Meera Ben (Smt.) v. Amritlal & Anr. (supra) and Luta Ram & Ors. Therefore, the defendant has already pleaded before the court about his being in possession for last twenty years. Thus, the question of now permitting the defendant to amend his pleadings was out of question. 13. In Meera Ben (Smt.) v. Amritlal & Anr. (supra) and Luta Ram & Ors. v. Smt. Champa Devi & Ors. (supra), the Court has observed that the proviso to Order 6, Rule 17 CPC is mandatory and in absence of pleading with regard to due diligence, an application under Order 6, Rule 17 CPC cannot be allowed. 14. The judgments referred to by counsel for the petitioner pertained to Order 8, Rule 6A CPC, and since the petitioner has approached the court by moving an application under Order 6, Rule 17 CPC and the court has also dealt with the application as having been filed under Order 6, Rule 17 CPC, the judgments cited by counsel for the petitioner have no applicability on the facts of the present case. 15. The trial court has rejected the application filed by the petitioner on the ground that there was no due diligence in moving the application and the same having been filed after delay on 10.03.2014, when the matter was pending for evidence of the plaintiff, no case is made out for interference in the said order and therefore, the writ petition deserves to be dismissed. 16. The present writ petition is accordingly dismissed. The stay petition also stands disposed.