DATED

27/06/2023

ON

IA

NO.XVI

IN

O.S.

NO.233/2017 PASSED BY THE CIVIL JUDGE AND JMFC

Digitally

signed by

NANDINI B G

Location:

HIGH COURT

OF

KARNATAKA

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MOODABIDRI (ANNEXURE-F) AND REJECT I.A. NO. XVI IN O.S.

NO.233/2017 ON THE FILE OF CIVIL JUDGE AND JMFC,

MOODABIDRI.

THIS PETITION, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner/plaintiff in O.S.No.233/2017 on the file

of the Civil Judge and JMFC, Moodabidri is before this

Court under Article 227 of the Constitution of India,

questioning the order dated 27.06.2023 allowing I.A.No.16

filed under Order VI Rule 17 of CPC to amend the written

statement to include counterclaim.

2.

Heard learned counsel Sri.Chandranath Ariga K., for

petitioner and learned counsel Sri.Jayakar Shetty for

respondent. Perused the writ petition papers.

3.

Learned counsel for the petitioner would submit that

the suit is one for permanent injunction restraining the

defendant from disturbing the management of “A”

schedule property by the plaintiff and for permanent

injunction

restraining

interference

with

the

poojas,

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viniyogas and religious functions in Shri.Ananthanatha

Swami

Basadi

at

Nellikar

village

and

Shri.

Somanatheshwara Temple in Daregudde village and

thereby interfering with the management of the said

Temples by the plaintiff through Sri. Vimal Kumar and Sri.

Mayuravarma respectively. It is submitted that the

respondent/defendant filed written statement in February

2018. Thereafter, the trial Court framed issues on

16.08.2019. When the suit was at the stage of evidence

of plaintiff, the respondent/defendant filed application

under Order VI Rule 17 of CPC to amend the written

statement to include counterclaim. Learned counsel for

the petitioner would submit that the said application filed

to amend the written statement would not be maintainable

and no such application could be filed after framing of

issues, that too when the suit is at the stage of evidence.

Learned counsel in that regard places reliance on the

decision of Hon'ble Apex Court reported in (2020) 2 SCC

394 in the case of ASHOK KUMAR KALRA v/s WING

CDR.SURENDRA

AGNIHOTRI

AND

OTHERS,

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particularly invites attention of this Court to paragraphs 18

and 21 of the said decision. Learned counsel taking

through the application for amendment submits that the

respondent/defendant has also prayed for decree of

permanent injunction restraining the plaintiff from cutting

and removing the trees existing in the suit properties and

from causing any waste and damage to the suit properties.

Such prayer in the form of counterclaim is impermissible

once issues are framed. Therefore, learned counsel

submits that the trial Court has committed an error in

allowing

the

application

without

noticing

that

the

counterclaim

could

not

have

been

filed

by

the

respondent/defendant subsequent to framing of issues.

Thus, he prays for allowing the writ petition.

4.

Learned counsel Sri. Jayakar Shetty for respondent

supports the order of the trial Court and submits that since

the trial is yet to commence, the trial Court is justified in

allowing the amendment application to include the prayer

by way of counterclaim. Further, he would submit that no

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prejudice would be caused to the petitioner/plaintiff and

on the other hand, it would avoid multiplicity of

proceedings. Thus, he prays for dismissal of the writ

petition.

5.

Having heard the learned counsel for the parties and

on perusal of the writ petition papers, the only point which

falls for consideration is as to whether the trial Court is

justified

in

allowing

the

amendment

to

include

counterclaim in the written statement.

6.

Answer to the above point would be in the negative

and the trial Court is not justified in allowing amendment

application to amend the written statement to include

counterclaim.

7.

Order VIII Rule 6A of the Code of Civil Procedure,

1908 provides for counterclaim by the defendant, subject

to terms and conditions sta