JUDGMENT

Sri S.K.Mishra, J.

1. Heard Shri Neeraj Garg, Advocate for the petitioners and Shri Sagar Kothari, Advocate for the respondent.

2. Petitioners, being the plaintiffs in Original Suit No. 260 of 2016, have assailed the order dated 28.09.2019 passed by 8th Addl. District Judge, Dehradun in Civil Revision No. 73 of 2019 setting aside the order passed by 3rd Addl. Civil Judge (SD), Dehradun rejecting the application for amendment in the counter claim filed by the defendant – respondent, herein.

3. The facts of the case are as follows: the plaintiffs – petitioners, herein, instituted an Original Suit No. 260 of 2016 before the learned Civil Judge (SD), Dehradun seeking a decree of permanent prohibitory injunction against the defendant – respondent, herein. Plaintiffs claimed that suit land was bequest to them by Shri Amarnath Kohli by virtue of registered WILL dated 28.08.2006 and he died on 19.06.2012. It is further alleged that the plaintiffs are in possession of the property. One day, defendant and his associates came to the property and created disturbance and threatened them to vacate the property. On 13.05.2016, the defendant after putting his appearance in the case, filed his written statement along with counterclaim denying the averments of the plaint and contended that an agreement to sell was executed in favour of the defendant by Shri Amarnath Kohli on 04.04.2012 and he paid a part of the amount, as earnest money and he claimed to be in possession of the land.

On 30.05.2016, learned Civil Judge (SD), Dehradun, allowed the application of the plaintiffs for temporary injunction against the defendant holding that prima facie, plaintiffs have proved their possession over the property, in question. On 17.09.2016, the Civil Judge (SD), Dehradun framed issues in the aforesaid suit and it was fixed for hearing on 18.10.2016.

On 22.11.2017, the defendant filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908, herein after referred as code for brevity, for amendment in the counterclaim, inter alia, averring that on 25.10.2017, when the attorney holder of the defendant reached the disputed property plaintiff no. 2, her husband Shri Satish and one Shri Rakesh Tyagi were present there and they broke the lock put by the defendant and have put their own lock. Accordingly, defendant sought amendment to the effect that relief of permanent prohibitory injunction be deleted and instead relief of mandatory injunction be substituted.

On 30.05.2016, plaintiffs filed their objection to the amendment application claiming that it was not bona fide. It is also claimed that amendment application has been filed to delay the progress of the suit.

On 31.05.2019, the 3rd Addl. Civil Judge (SD), Dehradun rejected the amendment application of the defendant.

Aggrieved by the said order, the defendant preferred a revision under Section 115 of the Code before the learned District Judge, which was registered as Civil Revision No. 73 of 2019. The said revision was transferred to 8th Addl. District Judge, Dehradun.

On 28.09.2019, the learned Revisional Court set aside the order passed by the Addl. Civil Judge (SD), Dehradun and allowed the amendment application of the defendant.

4. At the time of hearing of this writ petition, Shri Neeraj Garg, learned counsel for the petitioners fairly submits that the issue of bar of amendment in the counterclaim on the ground of arising subsequent cause of action, after filing of the counter claim has never been raised either before the learned Civil Judge (SD) or before the Revisional Court. Such a plea has been raised for the first time before this Court.

5. Learned counsel for the petitioner relying upon the several judgments, contends that the amendment in the counterclaim, after filing of written statement and counter claim, deleting the prayer for prohibitory injunction and adding the prayer of mandatory injunction, is barred by the provisions of the Code of Civil Procedure, if both th