Chaturbhuj Sawaria vs Natwarlal - 1992 Supreme(MP) 397

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Ravindra Shrivastava for applicants; P.R. Bhave for non-applicants.

Headnote:(1) Civil P.C., 1908 -- O.6, R. 17 and O.8, Rr. 6A, 6B and 6C - - amendment sought in written statement introducing counter-claim -- Court should be guided by provisions of Order 8 -- counter- claim can be filed even after filing the written statement.
        (2) Civil P.C., 1908 -- O. 8, R. 6A -- provision under -- does not bar filing of counter-claim after filing written statement.

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        The plaintiffs-non-applicants filed a suit for declaration of their title in respect of the suit-plot and houses standing thereon as described in Schedule-A annexed to the plaint against the defendants-applicants on 5.8.1992. The relief for possession of the suit properties as described in the said schedule was also claimed. The defendant-applicants filed their written statement on 28.2.1986 and denied the claim made by the plaintiffs-non- applicants.

        Held: The plaintiffs-non-applicants made an application for making amendment in their plaint on 1.12.1986. The application was allowed by the Court.
        Under the said amendment, it was alleged by the plaintiffs-non-applicants that (i) the defendant No.4 Vasudev Shyamji was in possession of a part of the suit-property described by letters ABCDE in Schedule-A; (ii) other parts of the property described by letters OPQR, STUV and GHIJ were in possession of the plaintiffs-non-applicants tenants; and (iii) the remaining parts of the suit-property were in possession of the plaintiff-applicants themselves. In. view of the said amendment, the relief of possession was confined to such parts of the suit-property as were not in possession of the plaintiffs-non-applicants and their tenants.

        The defendants-applicants too made an application for amending their written statement on 20.8.1987 on the ground that the proposed amendment was consequential to the amendment made by the plaintiffs-applicants in their plaint. In the proposed amendment it was admitted by them that the plaintiff-non-applicant No.1 Natwarlal had started residing in a part of the suit property since August 1978. But, then, according to them, the said act was done by the said plantiff with the permission of the defendants- applicants. As regards possession of the tenants, it was alleged by them that the said tenants were not the tenants of plaintiff Natwarlal but were their tenants. The trial Court vide its order dated 1.8.1987 allowed the said amendment.
        However, in their abovesaid amendment application, the defendants-applicants had also tried to introduce a counter-claim in their written statement with regard to the possession of such part of the suit property as was in occupation of plaintiff Natwarlal. The trial Court, vide its said order dated 1.8.1987 rejected the said part of the proposed amendment Now, it is apparent from a perusal of the impugned order dated 1..8.1987 passed by the trial Court that while considering the relevant part of the application in question made by the defendants-applicants for amendment in their written statement, the said Court completely failed to take into account the fact that by introducing the proposed amendments contained therein they had wanted to set up a counter-claim within the meaning of Order 8, Rule 6A of the Code of Civil Procedure. Accordingly, the particular part of the order passed by the trial Court is liable to be set aside on the said short ground alone, with a direction to the said Court to pass a fresh order in respect of the relevant part of the application for amendment made by the defendants-applicants, bearing in mind the provisions contained in Rules 6A, 6B and 6C of Order 8 of the Code of Civil Procedure.
        It may be observed that while disposing of the particular part of the application made by the defendants-applicants for amendment in their written statement, the trial Court has to be guided by the scope of the relevant provisions of Order 8 of the Code of Civil Procedure as explained by the Apex Court in Mahendra Kumar v. State of M.P. (AIR 1987 SC 1395). As explained by the Apex Court in the said case, Rule 6A (1) of Order 8 C.P.C. does not on the face of it bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A (1) is that a counter- claim can be filed provided the cause of action had accrued to the defendant before the defendant had deLi"Vered his defence or before the time limited for deLi"Vering his defence has expired, whether such counter-claim is in the nature of claim for damages or not.

        For the reasons stated above, the revision filed by the defendants-applicants is partly allowed. The order dated 1.8.1987 passed by the trial Court, rejecting the relevant part of the application for amendment made by the defendants-applicants, proposing to set up a counter-claim, is set aside. The trial Court is directed to dispose of the said part of the amendment application made by the defendants-applicants afresh after hearing both the parties, with advertence to the observations made in this order. AIR 1987 SC 1395 followed. Revision allowed.