IMPORTANT POINT
The purpose of provision enabling filing of a counter claim by way of amendment is to avoid multiplicity of judicial proceedings and to exclude inconvenience to parties to decide all disputes in course of same proceedings.

B.K. Nayak, J. —In this writ petition the petitioner, who is the plaintiff in Civil Suit No.85 of 2004 of the Court of learned Civil Judge (Senior Division), Sundargarh, has assailed the order dated 24.1.2011 passed by the said Court allowing amendment of the written statement of the opposite party-defendant by way of incorporation of counter claim.

2. The suit was filed by the petitioner seeking relief of declaration that the suit property was his absolute property. The defendant-opposite party is none other than the father of the petitioner. The plaintiff’s claim was that though defendant purchased the suit land by his own salary income, a house was constructed thereon by the joint efforts and finance of both the parties. The loan incurred by the defendant for the purpose of construction of the house could not be repaid by him, but it was ultimately repaid by the plaintiff for which the property was mortgaged with him by the defendant. Since for the development of the property and construction of the house, the plaintiff has borne the entire expenses it has become his absolute property. As it appears, the suit has been decreed on compromise in favour of the plaintiff-petitioner, but the opposite party filed RFA No.43 of 2007 in this Court which was allowed and the compromise decree was set aside and the matter was remanded to the trial Court for fresh disposal. Thereafter, the opposite party filed petition under Order 6 Rule 17 of the C.P.C. with a prayer to incorporate a counter claim in the written statement. The counter claim mainly relates to additional prayer for declaration of defendant’s right, title and interest over the suit land and for recovery of possession and for recovery of the rent realised by the plaintiff from the suit house pursuant to the compromise decree: The amendment was allowed by the impugned order subject to payment of cost of Rs.100 by the opposite parties to the plaintiff-petitioner.

3. The only contention raised by the learned counsel for the petitioner is that the counter claim was not maintainable after settlement of issues. For this, he relied on the decisions in Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508 and Gayathri Women’s Welfare Association v. Gowramma and another, AIR 2011 SC 785. Learned counsel for the opposite party contends that those decisions have no application to the facts and circumstances of the present case.

4. In the case of Ramesh Chand Ardawatiya (supra), the apex Court held that generally speaking, a counter claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced, with the following observations.

“Looking to the scheme of Order VIII as amended by Act No.104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter claim which in the light of R.1 read with Rule 6A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI, R.17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII, Rule 9 of the C.P.C. if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court’s t