1989 Supreme(Del) 175

High Court Of Delhi
UTTAM CHAND - Appellant
Versus
RAMKISHAN - Respondent
Civil 585 of 1986
Decided On : 04/11/1989

Headnote:Civil Procedure Code - Order 6, Rule 17 — Amendment — Rule of — In case the amendment is sought after 11 years of filing of w/s praying to add the clause that possession be restored on dismissal of case as counter claim and it was not necessary for determining controversy in suit, then the amendment is not to be allowed.

       1. civil Procedure Code, 1908 - Section 115 — Civil Revision — suit for specific performance — amendment of written statement — whether necessary for determining real controversy between the parties ? discretion of court.

       2. civil Procedure Code, 1908, - Order VIII Rule 6-A — counter claim — must be pleaded at first opportunity and specifically — application for amendment of written statement — amendment in nature of counter-claim whether amendment permissible ?

       The plaintiff filed a suit for specific performance; defendant filed written statement and evidence of the parties was recorded. The Defendant sought amendment of written statement after 12 years which was allowed by the Sub-Judge on payment of costs. Hence this Civil Revision. Allowing the Revision Petition, the Court

       Held:

       1. It cannot by any stretch of imagination be said that the proposed amendment in the prayer clause is necessary for the purpose of determining the real question in controversy between the parties. It also cannot be said that the said amendment was sought to be taken up by way of defense to the suit of the plaintiff. To allow such an amendment would be to allow the defendant to present a totally distinct, new and inconsistent case. There is no gainsaying that the power and discretion of the court to allow the amendment is wide and may be exercised at any stage of the proceedings, even at appellate stage, as long as it is needed in the interest of justice for determination of the dispute between the parties in as much as the exercise of such discretionary power is governed by judicial consideration and has to be exercised with circumspection on the part of the courts. Amendments which would have a tendency to cause prejudice to the other side, and such prejudice as cannot be compensated in costs, would not ordinarily be allowed. The object of Order 6 Rule 17 CPC is to enable the courts to decide the matter in suit and nothing beyond that. It cannot be said by any stretch of imagination that the proposed amendment is either relevant or necessary for the purpose of disposal of the matter in dispute. thereforee, it cannot be allowed.

       2. A counter-claim can be pleaded only in accordance with Order 8 Rule 6A CPC and not otherwise. Similarly counter-claim must comply with the provisions of Order 8 Rule 6B and 6C of the CPC. Counter-claim is substantially a cross-action rather than a defense pure and simple. counter-claim is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectually as in an independent suit and it not only requires to be properly stamped but further also an opportunity has to be give to the plaintiff to meet it. It has to be disposed of as if it is a separate suit by itself. It must be pleaded at the first opportunity and specifically. Amendment application does not show that the defendant wanted to take up the plea of counter-claim in his written statement. Defendant has not come forward with a specific plea of counter-claim. The facts which could entitle the defendant to possession of suit property have nowhere been pleaded in the body of the written statement as it stands or in the proposed amended written statement. The claim of possession sought to be introduced might even be time barred. No court fee has been paid on the counter-claim. If the proposed amendment is not allowed, it would not adversely affect the right of the defendant to file an independent suit for recovery of possession of the suit property if he is otherwise entitled to file one. No injury or injustice is likely to occasion to defendant if he is driven to file a separate suit to establish his claim. It would be difficult to say that the lower court was justified in allowing the amendment. As such proposed amendment should not have been allowed.