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2022 DIGILAW 384 (ALL)

Ramesh Chand Kingar v. Basant Kumar Bansal

2022-03-15

SIDDHARTH

body2022
JUDGMENT : 1. Heard Sri Sumit Daga, learned counsel for the petitioners and Sri Jagdish Prasad Mishra, learned counsel for the respondents. 2. This petition has been filed under Article 227 of the Constitution of India praying for setting aside the judgment and order dated 20.03.2018 passed by the Additional District Judge, Court No. 15, Muzaffar Nagar in Civil Revision No. 85 of 2014 (Basant Kumar Bansal & Another vs. Ramesh Chand Kingar & Others). 3. Plaintiffs/respondents instituted an Original Suit No. 223 of 2009 against the defendants-petitioners & defendants-respondents for the relief of permanent prohibitory injunction praying that defendants may be restrained from using gallery of the plaintiffs in any manner, which is shown as A, B, C, D, E, F in plaint map. Defendants-petitioners are the contesting parties and they filed their written statement and denied the aforesaid plaint allegation. As per the plaintiffs-respondents, gallery shown as A, B, C, D, E, F exclusively belongs to them and defendants-petitioners have no right in the said gallery. However, defendants-petitioners claimed that they were using the said gallery since beginning just like setback of their house and their windows and drainage system were also towards this gallery. It was also stated by the defendants-petitioners that plaintiffs-respondents have no right in the said gallery but in their absence they have made some construction in the said gallery and also installed safety tank whereby plaintiffs-respondents deliberately closed the window and stopped the drainage system of the defendants-petitioners. 4. Learned court below vide its order dated 10.03.2010 directed both the parties to maintain status quo on spot in question and the said order was affirmed in appeal. Therefore, the order dated 10.03.2010 is in operation till today. 5. Defendants-petitioners raised all their objections in their written statement but at the time of filing of the said written statement, due to the some inadvertent mistake, they could not seek relief against the plaintiffs-respondents for removal of illegal constructions, therefore, defendants-petitioners moved their counter claim against the plaintiffs-petitioners for the relief that they may be directed to remove their illegal constructions in the aforesaid gallery and they may further be directed not to restrain the defendants-petitioners to use the said gallery. The said counter claim was moved by the defendants-respondents by means of amendment application dated 19.04.2014 being Paper No. 104-Ka. The said counter claim was moved by the defendants-respondents by means of amendment application dated 19.04.2014 being Paper No. 104-Ka. Plaintiffs-respondents filed their objection in the aforesaid amendment application which was allowed by the Civil Judge, vide its order dated 20.10.2014 and the amendment was incorporated in written statement. The plaintiffs-respondents challenged the aforesaid order dated 20.10.2014 in Civil Revision No. 85 of 2014 which was allowed and hence this petition has been filed challenging the same. 6. Learned counsel for the defendants-petitioners has submitted that against the order allowing amendment application, revision was not maintainable and no failure of justice or irreparable loss was caused to the other side and therefore, such order does not falls under clause (a)(b) of Section 115(1) of C.P.C. He has relied upon the judgment of the Apex Court in the case of Prem Bakshi and others vs. Dharam Dev and others, 2002(1) A.W.C (SC) Page 484. He has stated that in order to avoid multiplicity or judicial proceedings, counter claim can be filed by way of amendment as held by this Court in the case of Hazari Lal and others vs. Brahma Nand and others, 2007 (1) ARC, Page No. 377. He has further submitted that counter claim can be filed at a later stage and plea of limitation does not applies as the defendants-petitioners did not brought on record new facts by way of counter claim. All the facts were already pleaded in the written statement. He has placed reliance on the judgment of this Court in the case of Smt. Kailashpati Devi and another vs. Jamuna Prasad Jaiswal and others, 2012 (93) A.L.R. 270. The revisional court's order holding that the counter claim is barred by time is not correct since the question of limitation can only be decided after framing of issues and coming to the evidence on record. Moreover, the court cannot examine the merits of the suit while deciding the amendment application. Reliance has been placed on the judgment of Apex Court in the case of Rajesh Kumar Aggrawal and others vs. K.K. Modi and others, 2006 SCFBRC Page 368. Moreover, the court cannot examine the merits of the suit while deciding the amendment application. Reliance has been placed on the judgment of Apex Court in the case of Rajesh Kumar Aggrawal and others vs. K.K. Modi and others, 2006 SCFBRC Page 368. He has finally submitted that the plaintiffs-respondents have not filed any counter affidavit, hence the pleadings in the writ petition are unrebutted and the petition deserves to be allowed on this ground as per the judgment of the court in the case of Khwaja Bux vs. Nazar Ali and another, 2010 A.R.C (3) 811. 7. Counsel for the plaintiffs-respondents has submitted that the defendants-petitioners filed amendment application to treat their written statement as counter claim in the suit after 5 years. The plaintiffs-respondents objected to the same on the ground that only 3 year's period of limitation is provided for instituting a suit for mandatory injunction and if such a relief was sought by way of counter claim, the same should have been filed within 3 years. He has relied upon the judgment of this Court in the case of Kamal Kishore Khullar vs. Second Additional Civil Judge (Junior Division), Gorakhpur, 2007(2) AWC 1085 . He has further submitted that a counter claim cannot be filed after filing of written statement as held by the Apex Court in the case of Bollepanda P. Panchal and others vs. K.M. Madappa, 2008 (2) AWC 1817 SC. He has relied upon the judgment in the case of Pooran Ram vs. Bhaguram and others AIR, 2008 (SC) 1960 and the judgment in the case of Raghu Tilak D. Jain vs. S. Rayyappan and others, 2001 (42) A.L.R 582 and Kailash Pati Devi vs. Jamuna Prasad Jaiswal, 2012 (93) A.L.R 270 and has submitted that in these cases the Apex Court has given guidelines for deciding amendment application and held that liberal view has to be taken in allowing the amendment application but not the amendment in counter claim. He has submitted that the judgments were wrongly relied by the trial court and amendment application of the defendants-petitioners were allowed by the order dated 20.10.2014. He has stated that the revisional court has correctly held that the amendment sought by the defendants-petitioners was barred by time as per Section 3(2)(b)(ii), Part 2 of the Limitation Act. He has submitted that the judgments were wrongly relied by the trial court and amendment application of the defendants-petitioners were allowed by the order dated 20.10.2014. He has stated that the revisional court has correctly held that the amendment sought by the defendants-petitioners was barred by time as per Section 3(2)(b)(ii), Part 2 of the Limitation Act. Section 3(1) provides that the suit for injunction shall be instituted within 3 years of the knowledge of institution of suit was instituted on 21.04.2009, the defendants-petitioners filed written statement on 21.05.2009 and filed amendment application to the written statement on 09.05.2014, slightly less than 5 years. Therefore, counter claim was filed beyond time. As per the order 8, Rule 6-A(4) a counter claim is to be treated as a plaint and the limitation provided for instituting the suit will also apply to the same. 8. After hearing the rival contentions, this Court finds that as per Order 8, Rule 6-A the defendant can in addition to his right of pleading, a set off under Rule 6, can also file a counter claim against the plaintiff and it will have the effect of cross suit and shall be treated as a plaint and governed by the same Rule as the plaint. 9. Order 8, Rule 6-A C.P.C is quoted hereinbelow :- “6A. Counter claim by defendant.- (1) 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 the filing of to 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) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court. (4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints.” 10. As per Section 3 of the Limitation Act, 1963 limitation for filing a counter claim has been provided. Section 3 of the Limitation Act is as follows:- 3. Bar of limitation.— (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 3 of the Limitation Act is as follows:- 3. Bar of limitation.— (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act— (2) For the purposes of this Act—" (a) a suit is instituted— (a) a suit is instituted—" (i) in an ordinary case, when the plaint is presented to the proper officer; (i) in an ordinary case, when the plaint is presented to the proper officer;" (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and" (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;" (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted— (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—" (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (i) in the case of a set off, on the same date as the suit in which the set off is pleaded;" (ii) in the case of a counter claim, on the date on which the counter claim is made in court; (ii) in the case of a counter claim, on the date on which the counter claim is made in court;" (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court. 11. The suit filed praying for a decree of mandatory injunction is covered under Article 113 of the Limitation Act and 3 year's period is provided for the same. 11. The suit filed praying for a decree of mandatory injunction is covered under Article 113 of the Limitation Act and 3 year's period is provided for the same. In the present case, the suit was instituted on 21.04.2009, the defendants-petitioners filed written statement on 21.05.2009 but filed an amendment application dated 19.04.2014 for amendment in the written statement setting up a counter claim. 12. The Apex Court in the case of Bollepanda P. Panchal and others (supra) held relying upon Order 8, Rule 6-A (1) C.P.C that the defendant is required to file his counter claim before he has filed written statement or before the time provided for filing written statement has expired. The Apex Court has distinguished the law regarding amendment of pleadings under Order 6, Rule 17 C.P.C and has stated that the amendment in pleadings are to be considered liberally but in the case of counter claim, the provisions of Order 8, Rule 6(A) applies. Such a view has been taken by this Court in the case of Narendra Road Line Pvt. Ltd. Vs. Pashtrya Ispat Nigam Ltd., 2016 (2) A.W.C 1402 . The judgments relied upon by the counsel for the plaintiffs-respondents also upholds the above legal proposition. The judgments placed by the learned counsel for the defendants-petitioners do not apply to the controversy raised in this petition. They apply to the general provisions regarding amendment in pleadings as per Order 6, Rule 17 C.P.C. 13. The last judgment relied by the counsel for the defendants-petitioners in support of his arguments, of Khwaja Bux (Supra), regarding the effect of averments in the writ petition not being denied and, therefore, the petition deserves to be allowed, is not correct. In the present case, pure question of law was raised and it has been addressed by the learned counsel for the plaintiffs-respondents correctly. Hence, the petition cannot be allowed on the basis incorrect legal pleadings in the petition. 14. The judgment and order dated 20.03.2018 passed by the revisional court does not suffers from any illegality and is hereby affirmed. 15. The petition lacks merit and is hereby, dismissed.