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IN THE HIGH COURT OF KERALA AT ERNAKULAM
VIJU ABRAHAM, J.
Maradijanu, D/o. Late Kelappan and Ors. – Petitioners
Versus
Melodanomanaamma, W/o. Late Govindannambiar and Ors. – Respondents
O.P.(C).No.1505 of 2023
Decided On : 12-08-2024
AMENDMENT - CIVIL PROCEDURE - Order VI Rule 17 CPC, Order VIII Rule 6A CPC - The court discussed the provisions of Order VI Rule 17 and Order VIII Rule 6A of the CPC, emphasizing that amendments to pleadings can be allowed at any stage if necessary for determining the real question in controversy. However, the court also highlighted that a counterclaim must be filed within a reasonable time and before the framing of issues, and that delay without valid reason can lead to rejection of such applications. The court's decision was influenced by the significant delay in filing the counterclaim, which was deemed unjustifiable given the circumstances.
Fact of the Case:
The petitioners, defendants in a boundary fixation and injunction suit, challenged the dismissal of their applications to amend their written statement and raise a counterclaim after an extensive delay of eight years. They argued that they were waiting for a favorable outcome in a related case, which was dismissed prior to their application.
Finding of the Court:
The court found that the petitioners failed to provide a valid reason for the significant delay in filing the counterclaim, which was submitted only on the day the suit was set for trial. The court noted that the delay was not justified and that the counterclaim was filed after the issues had already been settled.
Issues: Whether the court should allow the amendment of the written statement and the filing of a counterclaim after a substantial delay, and whether the reasons provided for the delay were sufficient.
Ratio Decidendi: The court reiterated that while amendments to pleadings are permissible, they must be made within a reasonable timeframe and before the framing of issues. The court emphasized that the delay in this case was excessive and lacked justification, aligning with precedents that restrict the filing of counterclaims after issues are framed.
Final Decision: The original petition was dismissed, upholding the trial court's orders rejecting the applications for amendment and counterclaim due to the unjustifiable delay.
JUDGMENT :
(Viju Abraham, J.) :
The above original petition has been filed challenging Exts.P6 to P9 orders passed by the Munsiff Court, Koothuparamba. Petitioners herein are defendants in OS No. 114 of 2013 on the file of the Munsiff Court, Koothuparamba, a suit filed for fixation of boundary and permanent prohibitory injunction.
2. A commission report was filed in the suit and the petitioners filed an application to remit the commission report which was declined by the trial court, against which OP(C)No. 254 of 2017 was filed which was dismissed as per Ext P3 judgment mainly finding that the petitioners have not raised any counterclaim along with the written statement or made any specific pleading to the effect that any property in possession of the petitioners herein is in the possession of the plaintiff. The petitioners submit that it is on an expectation that OP(C) No. 254 of 2017 will be allowed in their favour that the petitioners did not amend the written statement and raised a counterclaim. Thereafter, the petitioners filed IA No. 9 of 2023 (Ext P4) to amend the written statement including a counterclaim seeking recovery of possession. Thereafter, Ext P5 was filed seeking to amend the written statement. Later on, suit was listed for trial, thereupon Ext P6 application was filed to remove the case from the list. The same was dismissed and consequently, I.A. No. 9 of 2023 (Ext P4) was also dismissed as per Ext P7 order. Petitioners also filed I.A. 10 of 2023 for withdrawing I.A. No. 9 of 2023 and also seeking permission to file another application which was also dismissed as per Ext P8 order. Along with the same, I.A. No. 11 of 2023 was filed seeking permission to amend the written statement along with counterclaim, which was dismissed as per Ext P9. Exts.P6 to P9 orders were issued on 06.06.2023. It is aggrieved by the dismissal of same that the above original petition has been filed.
3. Petitioners relying on Order VI Rule 17 CPC submit that the court is well within its powers to allow amendment of the pleading at any stage of the proceedings if the amendment sought is found to be necessary for determining the real question in controversy between the parties. Petitioners submit that the delay alone in making an application for amendment cannot be a ground for rejection of the application.
4. Learned counsel appearing for respondents 1 to 8 submits that the contention raised by the petitioners is not bona fide in so far as no valid reason has been stated for the delay in amending the written statement and for raising a counterclaim since the same was filed only on 20.05.2023 when the suit was posted for trial.
5. I have considered the rival contentions of the parties.
6. A perusal of the order impugned reveals that only on 20.05.2023 application was filed for amending the written statement and for raising a counter claim. The suit is of the year 2013 and the issues were settled as early as on 22.06.2015. Petitioners are raising a counter claim after 8 years of the filing of the written statement. The reason stated for the delay in filing the same is that the petitioners were expecting a favourable order in OP(C) No. 254 of 2017, one filed challenging the rejection of the request made by the petitioners for remitting the commission report. A perusal of the order revealed that OP(C) No. 254 of 2017 was dismissed on 29.10.2021 and the petition to amend the written statement and to raise a counterclaim was filed only on 20.05.2023, the day on which the suit was listed for trial.
7. The Apex Court in Ashok Kumar Kalra v. Surendra Agnihotri and Ors., 2019(4) KLT 790 (SC), interpreted the provisions of Order VIII Rule 6A of CPC regarding the filing of counterclaim. The court after scanning through the various judgments on the point summed up the findings in paragraph 20 as follows:
A counterclaim must be raised before issue framing begins; late submissions risk disrupting judicial efficiency and violate procedural rules.
Counter claims must be filed before the settlement of issues in a trial stage; filing after issues are settled is not maintainable.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
Counter claims must be raised before issues are framed and within the limitation period, as per the Code of Civil Procedure and Limitation Act.
Counter-claims must arise before the defendant delivers their defense; otherwise, they are barred by limitation under the Code of Civil Procedure.
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