IMPORTANT POINT
Amendments to written statements are permissible to clarify defenses but must not change the suit's nature; counterclaims must be timely filed before issues are framed.

JUDGMENT :

(Shampa Sarkar, J.)

The revisional application is disposed of upon hearing the petitioner and the plaintiffs/opposite party Nos.1 to 4. The revisional application deals with the amendment of the written statement. The application for amendment was contested in the learned court only by the plaintiffs. Service upon the other opposite parties is dispensed with.

2. By an order dated July 22, 2022 passed in Title Suit No.126 of 2015, the court rejected the application for amendment of the written statement by which the defendant No.1 wanted to incorporate certain factual aspects with regard to the defence case and also introduce a counterclaim with certain prayers. The learned court rejected the application for amendment on the ground that under the guise of amendment, the defendant No.1 was praying for declaratory reliefs which were within the domain of the thika controller. Moreover, such amendment would change the nature and character of the suit.

3. Mr.Ghosal, learned advocate for the defendant No.1/petitioner submits that the order impugned suffers from the following irregularities:

a) Apart from the counter-claim, there were other averments which were sought to be incorporated in various paragraphs of the written statement by way of an amendment;

b) Such averments were in the nature of elaborations and clarifications of the defence case;

c) No new cause of action was introduced. No new defence was being incorporated;

d) The claims were not barred by limitation;

e) The amendment of the written statement should be allowed elaborately especially because neither contrary pleas were sought to be introduced, nor withdrawal of admissions were sought to be carried out;

f) At the time of preparation of the written statement, the learned advocate was not properly instructed. As such, vital factual aspects which required further elaboration in the written statement, had been left out.

4. The learned advocate for the plaintiffs opposes such application and submits that the thika controller had already held that the plaintiffs were thika tenants.

5. The prayer for introduction of a non-evictable right on account of the defendant No.1 being a thika tenant along with defendant No.4 were not available in view of the decision of the learned thika controller.

6. Secondly, a suit for eviction of a licensee was maintainable. The issue which the defendant No.1 wanted to introduce by way of amendment was already pending adjudication before the West Bengal Land Reforms and Tenancy Tribunal. At the fag end of the suit and at the stage of evidence, the amendment should not be allowed. The defendant No.1 had also not been able to satisfy that in spite of due diligence, the facts sought to be incorporated were not within his knowledge and could not be introduced in the written statement, before trial commenced.

7. Heard the rival contentions of the parties. Although Mr.Ghosal relies on the decision of the Hon'ble Apex Court in the matter of Mahendra Kumar and another v. State of Madhya Pradesh and others reported in AIR 1987 SC 1395, this court is of the view that filing of a counter-claim after the issues have been framed, cannot be allowed. The proposition laid down by the Hon'ble Apex Court in Mahendra Kumar (supra), is that counter-claim need not be filed along with written statement. The same can be filed after the written statement had been filed. However, the law is that the counter-claim even if filed after the filing of written statement must be before the issues are framed.

8. Reference is made to the decisions of Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas and Ors. decided in Civil Appeal No.- 7203 of 2022. The Hon'ble Apex Court held as follows:-

"20. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defend