Amendment of pleadings after the commencement of the trial is not permissible unless the party can show that in spite of due diligence, the matter could not have been raised before the commencement of the trial. A counter-claim can be filed only if the cause of action arose before the filing of the written statement or before the time limited for delivering the written statement has expired.

JUDGMENT :

BIVAS PATTANAYAK, J.

1. This revisional application has been filed under Article 227 of the Constitution of India challenging Order dated 14th June, 2022 passed by learned Civil Judge (Junior Division), 1st Court, at Bidhannagar, North 24 Parganas in Title Suit No. 145 of 2005 allowing the application of the defendants-opposite parties for amendment of written statement.

2. The brief fact of the case is that the petitioner-plaintiff filed a suit for a decree of declaration and for recovery of khas Possession against the defendants-opposite parties being Title Suit No. 145 of 2005. In the said suit, the defendant-opposite party no. 1 entered appearance and filed her written statement on 11.05.2006. Thereafter issues were framed in the suit and plaintiff-petitioner filed his examination-in-chief on affidavit and was cross-examined by defendant-opposite party no. 1. At the stage of cross-examination of plaintiff-petitioner, the defendant-opposite party no. 1 filed application for amendment of written statement along with a prayer for counter-claim. The learned Trial Judge, upon considering the materials on record, allowed the application of defendant-opposite party no. 1 for amendment of written statement.

3. Being aggrieved by and dissatisfied with the impugned order of the learned Trial Court, plaintiff-petitioner filed the present revisional application.

4. Mr. Asit Baran Raut, learned advocate for the plaintiff-petitioner, submitted at the outset that the application for amendment of the written statement has been filed almost after 15 years since filing of the written statement on 11.05.2006. The trial of the suit has already commenced and examination of the petitioner-plaintiff (PW1) has begun. The defendant-opposite party no. 1 without assigning any cogent ground filed application for amendment of written statement after commencement of trial. The provisions for amendment of pleadings under Order VI Rule 17 of the Code has been substantially amended by Civil Procedure Code (Amendment) Act, 2002 which clearly envisages that after commencement of the trial, no application for amendment shall be allowed unless it is shown that in spite of due diligence, the matter could not be raised before the commencement of trial. The defendant-opposite party no. 1, in her application for amendment of written statement, has not disclosed and/or provided any explanation for seeking amendment of the written statement at a belated stage, that too, after commencement of trial and the contents of the application for amendment is silent on this aspect. Such being the position, the impugned order of the Trial Court allowing the application of the defendant-opposite party no. 1 for amendment of written statement is not sustainable in law and is liable to set aside. To buttress his contention, he relied on the decision of Hon’ble Supreme Court passed in Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 and also of this Court passed in Smt. Jayasri Guha (Nee Ghosh) vs. Smt. Sukla Ghosh, AIR 2012 Cal. 237. He further submitted that, by way of amendment, the defendant has also introduced prayer for counter-claim. However, such counter-claim is hopelessly time barred under Article 113 of the Limitation Act read with Section 3(2)(b) of the Limitation Act. In support of his content, he relied on the decision of this Court passed in M/s. Oriental Ceramic Products Pvt. Ltd. vs. Calcutta Municipal Corporation, AIR 2000 Cal. 17. Further under the provisions of Order VIII Rule 6A of the Civil Procedure Code, counter-claim is not maintainable after disclosure of defense. He relied on the decision of this Court passed in Shyamal Kumar Das vs. Sanjoy Chowdhury, 2011 (5) CHN (Cal) 115. Further relying on the decision of this Court passed in Aninda Saha and Another vs. Amal Saha, AIR 2001 NOC 101 (Cal), he submitted that counter-claim cannot bring something which is foreign to the suit. In view of his above submissions, he prayed for setting a