Counterclaims must be filed before the framing of issues; allowing delayed counterclaims undermines procedural justice.

ORAL ORDER

This petition is filed seeking the following reliefs:

i) Writ of Certiorari setting aside the order dated 03/12/2019 on IA No 14 in OS No 504/2013 passed by the IV Addl. Civil Judge & JMFC, Mangaluru certified copy of which is produced at Annexure A.

ii) Any other writ or directions to meet the interest of justice and equity.

2. Sri.Ravishankar Shastry G., learned counsel appearing for the petitioner submits that the petitioner filed O.S.No.504/2013 against the respondents herein seeking relief of permanent mandatory injunction and in the said suit, belated application is filed seeking amendment of the written statement raising counterclaim against the petitioner which came to be allowed by the trial Court under the impugned order.

3. It is submitted that the trial Court has not considered the effect of Order 8 Rule 6A of CPC in allowing the application. It is further submitted that the counterclaim can be made in a pending suit along with written statement or within the time stipulated to file the written statement. The time for filing a written statement is 90 days from the date of service of the summons. However, the trial Court allowed the application for amendment of the written statement and counterclaim after concluding the evidence of the petitioner and then the matter was posted finally for the defendants evidence. Such exercise taken by the trial Court is contrary to the law laid down by the Hon'ble Supreme Court in the case of Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri and Others , (2020) 2 SCC 394 Hence, he seeks to allow the petition by setting aside the impugned order and rejecting the application for amendment of written statement.

4. Though notice on legal heirs of respondent Nos.1 and 2 have been served, they remained absent.

5. Learned counsel for respondent No.3 submits that the dispute is purely between the petitioner and respondent Nos.1 & 2 and no relief is sought against respondent No.3. Hence, he seeks to pass appropriate orders.

6. I have heard the arguments of the learned counsel for the petitioner and perused the materials available on record.

7. The pleading and material available on record indicates that the petitioner filed O.S.No.504/2013 against the respondents herein seeking relief of mandatory injunction to remove illegal construction of compound wall on the western and northern side of the plaint schedule property and on failure of the defendant to do the same, direct the Court bailiff to carry out the same at the cost of defendants and further prohibitory injunction restraining defendant Nos.1 and 2 from creating any obstruction to the plaintiff for movement to the plaint schedule property. In the aforesaid suit, respondent Nos.1 and 2 have filed written statement on 26.08.2013 denying the assertion made in the plaint. The order sheet indicates that the plaintiff examined himself as PW.1 and his evidence was concluded on 15.12.2015 and thereafter, the matter was posted for the defendants' evidence on 31.03.2016. The matter adjourned at the instance of defendants on several occasions. On 13.09.2019 the trial Court posted the matter for defendants' evidence as a last chance. The order sheet further indicates that on 20.09.2019, respondent Nos.1 and 2 filed an application in IA.No.14 under Order 6 Rule 17 r/w Section 151 of CPC seeking prayer to carry out amendment in the written statement and also sought the relief of counterclaim. Admittedly, the said application is filed by respondent Nos.1 and 2 raising counterclaim after more than 6 years from the date of filing of the written statement. Order 8 Rule 6A reads as under:

Order 8 Rule 6-A “6-A. Counterclaim by defendant.—(1