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2021 DIGILAW 1487 (PNJ)

Jaydeep Kaur v. Gurmail Singh

2021-08-04

ANIL KSHETARPAL

body2021
ORDER Anil Kshetarpal, J (Oral). - The hearing of the case was held through video conferencing on account of restricted functioning of the Courts. 2. Through this revision petition, the correctness of an order passed by the Civil Judge (Sr. Division), Sangrur, on 22.03.2021, while dismissing the application under Order 6 Rule 17 read with Order 8 Rule 6-A CPC for permission to amend the written statement in order to add the counter claim has been assailed. 3. Some facts are required to be noticed. 4. Gurmail Singh, Daljit Singh and Harmeet Singh filed a suit for specific performance of the agreement to sell with respect to Vi share of land measuring 191 Bighas and 6 Biswas. The plaintiffs claim that Sh. Gopal Inder Singh had entered into an agreement to sell on receipt of earnest money of Rs.4,00,000/-against the total sale consideration of Rs.17,00,000/-with them on 21.04.1995. The plaintiffs have further claimed that as per the agreement, further payment of Rs.7,00,000/- was paid on 30.05.1995,whereas the payment of Rs.6,20,000/- was paid on 11.08.1996. The plaintiffs claim that they are already in possession of the entire property as tenants. 5. Sh. Gopal Inder Singh died before the filing of the suit. Smt. Amrit Kaur was impleaded as defendant being the legal heir of Gopal Inder Singh. She defended the suit. However, she also died during the pendency of the suit. Jayadeep Kaur and Udhey Singh were brought on record as the legal representatives. The suit came to be decreed on 10.01.2011. Jayadeep Kaur and Udhey Singh filed an appeal against the same. During the pendency of the appeal, an application was filed for impleading the aforesaid heirs as party defendants in their independent capacity. The application was dismissed by the learned first appellate court. However, on 30.07.2015, the High Court while setting aside the order of the Additional District Judge, Sangrur, allowed the (the Petitioners herein) impleadment in their independent capacity. A Special Leave Petition against the judgment passed by the High Court has already been dismissed. 6. On 04.02.2020, the learned first appellate court, after noticing the aforesaid developments, considered it appropriate to remand the case back to the trial court for decision afresh after a de-novo trial. The petitioners herein appeared before the trial court on 04.02.2020. They filed a written statement on 14.02.2020, which was unsigned. 6. On 04.02.2020, the learned first appellate court, after noticing the aforesaid developments, considered it appropriate to remand the case back to the trial court for decision afresh after a de-novo trial. The petitioners herein appeared before the trial court on 04.02.2020. They filed a written statement on 14.02.2020, which was unsigned. On 03.03.2020, the trial court dismissed the application of the plaintiffs for disposing of the suit. Another application for striking the names of the legal representatives of the deceased-defendant was also dismissed vide an order dated 09.03.2020. The Court further noticed that the newly added defendants (the petitioners herein) have filed an unsigned written statement. Therefore, the court granted an opportunity to the defendants to either sign the written statement or to file a fresh written statement which is complete in all respects. Thereafter, due to the outbreak of corona virus pandemic, the proceedings remained stalled for quite some time. On 01.02.2021, when the case was taken up after a period of one year, the petitioners filed their written statement along with a counter-claim. Thereafter, on 19.02.2021, the plaintiffs' application filed under Order 6 Rule 18 CPC was dismissed by the trial court. The Court, after noticing that the fresh written statement filed by the petitioners is at variance with the written statement filed on 14.02.2020, granted last opportunity to the petitioners to file their written statement in terms of the order dated 09.03.2020. Thereafter, on 22.02.2021, the petitioners filed an application for permission to amend the written statement in order to a add counter-claim. The petitioners claimed that in view of the facts pleaded and a written compromise dated 20.01.2008, neither Gopal Inder Singh nor Smt. Amrit Kaur were owners of the land. The petitioners pray for the relief of possession as also for mesne profit for use and occupation with respect to the land measuring 191 Bighas and 6 Biswas. 7. The learned trial court has dismissed the application vide an order dated 22.03.2021. The application has been dismissed on the ground that there is colossal delay in filing the application for amendment and the jurisdiction of the civil court is barred with respect to the relief of possession of the land sought in the counter-claim as the plaintiffs claim to be in possession as tenants. That is how this revision petition has been filed. 8. That is how this revision petition has been filed. 8. This Bench has heard the learned counsel for the parties at length and with their able assistance perused the paper book. Apart from addressing the oral arguments, they have also filed their written arguments. 9. It is not in dispute that the petitioners after having been impleaded as defendants in their own right appeared before the Court for the first time on 04.02.2020. They filed their written statement on 14.02.2020. Due to the outbreak of corona virus pandemic, no proceedings took place between March, 2020 to January, 2021. The petitioners filed applications for permission to amend the written statement on 22.02.2021. Before that day, they had already filed their counter-claim in the Court. Hence, the learned trial court has erred in recording a finding that there is a colossal delay in seeking the amendment. No doubt, the suit has remained pending for quite some time. However, the petitioners have appeared on 04.02.2020 for the first time before the trial court after having been impleaded as party defendants in their own right. Hence, the learned trial court committed an error while observing that there is a colossal delay on the part of the petitioners. 10. The next reason assigned by the trial court is also equally erroneous. No doubt, the plaintiffs claim to be in possession as tenants. They claim that in the revenue record, they are recorded to be "Gair Marusi". It is significant to note that the petitioners have asserted that in a previous litigation, the plaintiffs have failed to prove their tenancy and hence, have been declared as tresspassers. Even in the proceedings under Section 145/146 Cr.P.C, it is the petitioners, who have been held entitled to possession. Still further, the plaintiffs are yet to prove their case. Hence, learned trial court erred in refusing to permit the defendant to set up a counter-claim. 11. In a recent judgment passed by the Larger Bench in Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri and others, (2020) 2 SCC 394 . it has been held that if the cause of action for filing the counter claim arises prior to the filing of the written statement or the time fixed for filing it, then counter-claim can be filed by moving an application for permission to amend the written statement. Surendra Agnihotri and others, (2020) 2 SCC 394 . it has been held that if the cause of action for filing the counter claim arises prior to the filing of the written statement or the time fixed for filing it, then counter-claim can be filed by moving an application for permission to amend the written statement. It has further been held that the counterclaim can be permitted to be filed even after the written statement has been filed. The larger Bench has held that the counter-claim can be allowed to be added by an amendment of the written statement till the time the issues are framed by the Court. In a partly dissenting opinion, one Hon'ble member of the Bench has held that the permission to amend the written statement in order to add the counter claim can even be permitted till the plaintiff leads his evidence. The relevant discussion laying the majority opinion, is in paragraphs 7 and 18, which are extracted as under:- 7. At the outset, there is no gainsaying that the procedural justice is imbibed to provide further impetus to the substantive justice. It is this extended procedural fairness provided by the national courts, which adds to the legitimacy and commends support of general public. On the other hand, we must be mindful of the legislative intention to provide for certainty and clarity. In the name of substantive justice, providing unlimited and unrestricted rights in itself will be detrimental to certainty and would lead to the state of lawlessness. In this regard, this Court needs to recognize and harmoniously stitch the two types of justice, so as to have an effective, accurate and participatory judicial system. 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter claim, should adopt a balanced approach keeping in mind the object behind the amendment and to sub serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC." 12. The learned counsel representing the respondents-plaintiffs contends that the petitioners are not entitled to the relief as they are guilty of failure to defend the suit properly while highlighting that the petitioners, at the first instance, did not sign their written statement and thereafter, filed the amended written statement along-with a counter-claim without seeking the prior permission of the Court. It has further been contended that the petitioners have failed to specify the proposed amendments in their application for permission to amend in accordance with the requirements of sub-rule (2) of Order 6 Rule 17 CPC (Local Amendment). 13. He further contends that the petitioners have not disclosed any sufficient reason to make out a case for permission to amend the written statement. He further contends that a copy of the counter-claim has not been attached with the application. 13. He further contends that the petitioners have not disclosed any sufficient reason to make out a case for permission to amend the written statement. He further contends that a copy of the counter-claim has not been attached with the application. It has also been highlighted that the application has been filed after a period of one year. He submits that the petitioners are not entitled to add the counter-claim by their own act, conduct and ill motive. It has also been highlighted that the petitioners have not challenged the correctness of the order passed by the trial court on 09.03.2020. It has further been pointed out that in the original written statement, the petitioners have not at all specified anything regarding counter-claim. It has also been pointed out that in Civil Suit No.CS-157-2021 titled as "Jyotinderpreet Singh and another vs. Gurjit Singh and another, similar counter-claim has been filed. 14. As regards the first argument, it may be noted that the learned trial court after noticing the irregularity has already permitted the petitioners to file the signed pleadings. Hence, there was no occasion for the Court to take an adverse view of the matter. 15. As regards the next argument, it may be noted that the petitioners have already filed an application for permission to amend. At the most, this is an irregularity on the part of the petitioners. Similarly, as regards the failure of the petitioners to specify the proposed amendments in their applications, it has to be considered that the rules of procedure are to advance the cause of justice rather than suffocating it. The Hon'ble Supreme Court in paragraph 7, which has been extracted above, has clearly held that while interpreting the procedural code, the Court is required to interpret the same in a manner which results in sub-serving the cause of justice. The proposed counter-claim had already been filed and therefore, the Court was made aware of the nature of the counter-claim. 16. As regards the non disclosure of sufficient reasons, it may be noted that the petitioners did file the counter-claim when the Court reopened after the involuntary break due to the upsurge of Corona virus. The proposed counter-claim had already been filed and therefore, the Court was made aware of the nature of the counter-claim. 16. As regards the non disclosure of sufficient reasons, it may be noted that the petitioners did file the counter-claim when the Court reopened after the involuntary break due to the upsurge of Corona virus. No doubt, in an ideal situation, the petitioners were required to disclose sufficient reasons for permission to amend the written statement, however, keeping in view the stage of the suit, this Bench does not find it appropriate to reject the prayer for filing the counter-claim only on this ground. The issues in the suit are yet to be framed. The parties are in the process of filing their pleadings. In such circumstances, the argument of the learned counsel representing the respondents cannot be accepted, particularly, when it is well settled that the rules of procedure are made to advance the cause of justice and not to defeat it. 17. The next objection of the learned counsel representing the respondents is that the petitioners have failed to fulfill the requirements of Sub-rule (2) of Order 6 Rule 17 CPC which has been added by a local amendment requiring the party to disclose the specific amendments which are sought to be added, omitted or substituted. It may be noted here that in the facts of the case, particularly, when the petitioners have already filed their counter-claim and brought to the notice of the Court, the addition sought to be made, such a technical objection cannot be allowed to defeat the substantive claim. On the same ground, the next objection of the learned counsel representing the respondents that no counter-claim has been attached with the application is required to be rejected particularly when it has already been filed in the Court. 18. The next objection of the learned counsel representing the respondents is with respect to the act, conduct and ill motive of the petitioners. 19. It may be noted here that no doubt, the petitioners without permission of the Court attempted to file their counter-claim, however, on being pointed out, the petitioners have filed an application to seek permission. Hence, such irregularity, in the considered opinion of the Bench, does not dis-entitle the petitioners from filing the written statement. 20. 19. It may be noted here that no doubt, the petitioners without permission of the Court attempted to file their counter-claim, however, on being pointed out, the petitioners have filed an application to seek permission. Hence, such irregularity, in the considered opinion of the Bench, does not dis-entitle the petitioners from filing the written statement. 20. As regards the absence of challenge to the orders dated 09.03.2020 and 19.02.2020, respectively, it may be noted that at that stage, there was no application for permission to amend the written statement. The orders passed were in the context of the pleadings on record. 21. The next objection of learned counsel is with regard to the fact that in the original un-amended written statement, no counter-claim was stated. However, it is for this reason only that the petitioners have filed an application for amendment. 22. The next argument of the learned counsel is with respect to dependency of another suit. 23. In the considered view of this Bench, the pendency of another suit, in which the petitioners have been permitted to file their counter-claim, rather supports the case of the petitioners. 24. Keeping in view the aforesaid facts, the order passed by the learned trial Court cannot be sustained. Hence, it is set aside. The revision petition is allowed. Consequently, the application of the petitioners for permission to amend the written statement is allowed. 25. All the pending miscellaneous applications, if any, are also disposed of.