Judicial discretion permits amendments to pleadings if justified, aiming for effective dispute resolution while maintaining procedural integrity.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order being no. 18 dated June 17, 2025 passed by the learned Judge, Xth Bench, City Civil Court, Calcutta in Title Suit No. 1527 of 2022.

2. By the order impugned, the application under Order 8 Rule 9 of the Code of Civil Procedure stood rejected.

3. The opposite party filed a suit for declaration that the petitioner is in illegal and unlawful possession of the suit premises as a rank trespasser thereof and for eviction of the petitioner and for other consequential reliefs. In the said suit the evidence of PW-1 has already started and the petitioner cross-examined the PW-1 on several dates. At that stage, an application under Order 8 Rule 9 of the Code of Civil Procedure was filed by the petitioner herein praying for leave to file an additional written statement with counter claim. The learned Trial Judge, by the order impugned, rejected such application.

4. Being aggrieved, the defendant has approached this Court.

5. Mr. Ray, learned advocate appearing for the petitioner submits that the petitioner is a widow who is contesting the suit by filing a written statement. He further submits that the petitioner consulted with one learned senior advocate at the time of cross-examination of PW- 1, who advised the petitioner to file an application praying for leave to file the additional written statement with counter claim as relevant facts have not been stated in the Written Statement. He submits that unless the leave as sought for by the petitioner is allowed, the petitioner will suffer irreparable loss and injury.

6. Ms. Chakraborty, learned advocate appears for the opposite party. She submits that the petitioner sought for leave to file an additional written statement to incorporate certain facts as well as to set up a counter claim. She submits that setting up a counter claim after framing of issues is impermissible in view of the decision of the Hon’ble Supreme Court in the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra Agnihotri & Ors. (2020) 2 Supreme Court Cases 394. She further submits that the leave to incorporate the facts other than setting up the counter claim also was rightly rejected by the learned Trial Judge as the petitioner approached the learned Trial Judge at a highly bleated stage. She further submits that the application under Order 8 Rule 9 of the Code of Civil Procedure was filed in order to bypass the proviso to Order 6 Rule 17 of the Code of Civil Procedure.

7. Heard the learned advocate for the parties and perused the materials placed.

8. Three Hon’ble Judges of the Supreme Court in Ashok Kumar Kalra (Supra) held that the Court has to take into consideration, the outer limit for filing the counter claim which is prayed till the issues are framed. One of the Hon’ble Judges while partly supplementing and partly dissenting with the aforesaid view observed that in exceptional circumstances, to prevent the multiplicity proceedings, the Court may entertain a counter claim even after the framing of issues, so long as the Court has not started recording the evidence. Thus, it is well settled that the counter claim may be allowed to be set up after framing of issues in exceptional cases but the same cannot be allowed after the recording of the first witness of the plaintiff has started.

9. It is not in dispute that the application under Order 8 Rule 9 of the Code of Civil Procedure was filed after the cross-examination of the first witness of the plaintiff continued for some time. For such reason, this Court is not inclined to allow the prayer of the petitioner to incorporate the counter claim by way of subsequent pleading.

10. After going through the proposed additional written statement which has been annexed at page 29 of the civil revision application, this Court finds that paragraphs 1 and 2 of the said proposed additional written statement relates to in