Amendment of written statement and counter claim can be accepted before framing issues as they are explanatory and do not alter the suit's nature.

ORDER :

1. This matter is taken up through hybrid mode.

2. This CMP has been filed assailing the order dated 1^st March, 2016 (Annexure-1) passed by learned Civil Judge (Senior Division), Jaleswar in C.S. No.19 of 2010, whereby an application under Order VI Rule 17 C.P.C. for amendment of the written statement as well as acceptance of the counter claim has been rejected.

3. Mr. Dash, learned counsel submits that the Petitioner is the Defendant No.1 in the suit. Although a written statement was filed on 10^th August, 2012 by the Defendant No.1, but the instructions imparted to the learned counsel appearing for the Petitioner could not be reflected in the written statement. As the Defendant No.1 was 75 years old at the time of filing of written statement, he could not properly verify the contents of the same. However, when he came to know that the instructions imparted to his counsel are not reflected in the written statement, the Defendant No.1 immediately changed his counsel and filed an application under Order VI Rule 17 C.P.C. to amend the written statement and introduce counter claim praying, inter alia, right, title and interest over the land pursuant to the sale deed executed in his favour. Learned trial Court rejected the said petition on the ground that pleadings sought to be incorporated by way of amendment were in the knowledge of Defendant No.1 and the petition for amendment was filed at a belated stage. It is his submission that although the suit was filed in the year, 2010, but notices on the Defendants are not yet sufficient. Since the issues have not yet been framed in the suit, there is no impediment for the learned trial Court to allow the amendment of written statement as well as to accept the counter claim. It is his submission that amendments sought for are explanatory in nature and will not change the nature and character of the suit land. In order to establish his right, title and interest over the suit land, the Defendant No.1 has sought to amend the pleadings. Learned trial Court without considering the matter in its proper prospective rejected the petition. Hence, this CMP has been filed.

4. Mr. Chaini, learned counsel for the Opposite Parties vehemently objected to the same and contended that the sale deed by virtue of which the Defendant No.1 claims title was a nominal one. Admittedly, the suit has been filed for partition and declaration that the sale deed executed in faovur of Defendant No.1 is null and void and is not binding on the parties. The sale deed in question was never acted upon. The pleadings sought to be amended were in the knowledge of Defendant No.1 at the time of filing of written statement. Although the written statement was filed in the year, 2012, but belatedly the Defendant No.1 sought for amendment of the pleadings only to linger the proceeding and to harass the Plaintiff. He, therefore, submits that learned trial Court has rightly rejected the petition for amendment of written statement as well as acceptance of the counter claim and prays for dismissal of CMP.

5. Considering the rival contentions of the parties, this Court finds that the issues have not yet been framed in the suit. Order sheet of interim application (I.A. No.1428 of 2022), which has been filed for extension of the interim order, discloses that by 2^nd November, 2022 notices on Defendant Nos.5, 9(Ga), 19(Gha) and 19(Uan) were not sufficient. Law is well settled that a counter claim can be accepted at any stage of the suit but before framing of the issues ( Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri and others , (2020) 2 SCC 394 ). Thus, there