The judgment establishes the principle that additional prayers or paragraphs in a counter claim can only be added through an appropriate application seeking amendment under the Civil Procedure Code.

JUDGMENT :

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

CM APPL No. 13224//2023

1. This is an application seeking exemption from filing certified copies of the annexures.

2. Exemption is allowed, subject to all just exceptions.

3. Application stands disposed of.

CM(M) 442/2023 & CM APPL. 13223/2023

4. The petition is taken up for final disposal with the consent of parties.

5. The petitioner challenges the order dated 17.02.2023 passed in CS(Comm) No. 295/2020 titled ‘M/s. Daina Techno Solutions Pvt. Ltd vs. Hemant Verma’, whereby the application filed by the petitioner/plaintiff under Section 151 of CPC, 1908 seeking recall of order dated 06.12.2022 wherein the learned Trial Court had directed the respondent/counter claimant to separate the counter claim from the written statement and the petitioner claims that in the garb of that, the counter claimant had inserted additional prayers, was dismissed.

6. Mr. Jai Sahai Endlaw, learned counsel for the petitioner/plaintiff, who was the defendant in the counter claim, submits that once particular prayers have been already sought for in the original counter claim, without filing an appropriate application seeking amendment, the respondent/counter claimant could not have inserted/added additional prayers apart from those which were already taken in the original counter claim.

7. Mr. Endlaw, submits that the learned Trial Court procedurally committed an error by permitting the said additional prayers to be added and the counter claim be filed as it is, without directing the respondent/counter claimant to move appropriate application seeking amendment to the prayers. Hence, the present petition.

8. Mr. Ravi Kapoor, learned counsel for the respondent/counter claimant took this Court through the averments in the original counter claim and submits that those additional prayers which have been made in the separate counter claim, are arising within the four corners of, and within the pleadings in the counter claim. He further submits that since the suit is at a nascent stage, such inclusion would not require a formal application of amending the counter claim.

9. This Court has considered the submissions of learned counsel for the parties and perused the original counter claim as well as the new counter claim filed on the strength of order dated 01.11.2022.

10. In order to appreciate the controversy, it would be apposite to extract the prayer clause of the original written statement-cum-counter claim and the fresh separated counter claim which are as under:-

“Original counter claim

32. In the facts and circumstances as aforesaid, it is most respectfully prayed that this Hon'ble Court may be pleased to:

i. Pass a decree in favour of the Defendant/Counter Claimant for rendition and accounts and and against the Plaintiff/Respondent, Mr. Manoj Kumar Rai & others and direct then to pay the balance amounts along with pendente lite and future interest @ 18% per annum, and

ii. Pass a judgment and decree in favour of the Counter Claimant and against the Plaintiff thereby ordering restitution of benefits purportedly derived by the Plaintiff being possession of substantial portions of the said property, to Defendant/Counter Claimant, under the purported Agreements dated 22.05.2015.

iii. Pass a decree awarding the litigation cost incurred by the Defendant/Counter Claimant; and

iv. Pass any such other or further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

Fresh Counter Claim

In the facts and circumstances as aforesaid, it is most respectfully prayed that this Hon'ble Court may be pleased to:

i. Pass a Decree of Declaration in favour of the Counter Claimant and against the Respondent declaring that the alleged documents being inter alia Advance Receipt Agreen1entto Sell & Purchased dated 22.05.2015, affidavits and Receipt are forged, fabricated, false documents and void ab initio;

ii. Pass a Decree of Permanent Injunction in favour of the