IMPORTANT POINT
Counter-claims must be filed independently and cannot be included in an amendment application to a written statement.

JUDGMENT :

Hon'ble Ajit Kumar, J.-Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Vishwa Pratap Singh, learned counsel for the petitioner and Sri Hari Prakash Tiwari, learned counsel appearing for the contesting respondent.

2. By means of this petition filed under Article 227 of the Constitution, petitioner has challenged the order passed by the trial Court allowing the amendment in the written statement as well as counter-claim incorporated in the amendment application itself, moved on 19.12.2013 after exchange of pleadings initially made between the parties and also after framing of issues that took place on 27.11.2013.

3. The submission advanced by learned Senior Advocate is two-fold: Firstly, all these facts that are sought to be pleaded by way of amendment in the written statement were within the knowledge of the defendant-respondent and thus the respondent could have set up a counter-claim at that very stage while filing the written statement. Hence, he having the knowledge of the same, even the amendment application was barred in view of proviso contained under Order 6 Rule 17 of Civil Procedure Code; and secondly, the counter-claim could not have been accepted as it was made part of the amendment application filed seeking amendment in the written statement. He submits that defendant-respondent should have filed the counter-claim under Order 8 Rule 6A of the Civil Procedure Code independent of any amendment application seeking amendment in the written statement. He argues that counter-claim is also tried like a suit. He has placed reliance upon two judgments of this Court first being Kalam Beg v. District Judge, District Shrawasti and others, 2018 (36) LCD 164 and second being Kamal Kishor Kullar v. IInd Additional Civil Judge (J.D.), Gorakhpur and others; 2007(2) ADJ 396.

4. Countering the submissions so advanced, learned counsel appearing for the contesting respondent has submitted that amendment application is nothing but a clarificatory one in respect of what had already been pleaded in paragraph Nos. 4, 7, 8, 10 & 12 of the written statement. He submits that right from the beginning the defendant had discarded the claim set up by the plaintiff that some agreement was entered to give permissive possession of the house property admittedly belonging to the defendant-respondent in view of loan advanced of Rs. 2,50,000/- for recovery of which the present suit has been instituted. He submits that amendment can be allowed at any stage and further when the amendment is in the nature of a clarificatory pleading then such an amendment can be allowed because the parties are not to lead any additional evidence in respect of the specific plea already taken. He further submits that the counter-claim was not barred by time as the rule of procedure prescribed under Order 8 Rule 6A are to be taken as a handmade rule of justice and should not be so mandatorily construed so as to dislodge a counter-claim if pleaded as a part of amendment application.

5. In rejoinder to the above submissions made by the learned counsel appearing for the defendant-respondent, learned senior Advocate could not dispute that whatever has been pleaded already in the written statement is sought to be clarified by way of certain more paragraphs like 13-ba, 13-sa and 13-da to be added in the already existing pleading in the written statement.

6. Having heard learned counsel for the respective parties and having perused the record, I find that the claim set up is that petitioner-plaintiff came to advance Rs. 2,50,000/- at some point of time to the defendant-respondent and it was through his brother that an understanding was reached that as security towards advance, a house property located in Ishapur Newada, will be given in possession to the plaintiff and for that purpose, some sort of written note was so executed on 27.4.2011. These allegations have been made in the plaint to maintain the suit for recovery and to demonstrate that in fact such a loan