The petitioner, defendant in S.C.No.1765/2018 on

the file of the IX ASCJ. Small Causes and Additional MACT,

Bengaluru (SCCH-7) (for short, ‘Trial Court’) is before this

Court aggrieved by order dated 02.01.2023 dismissing

I.A.No.25 filed under Order VI Rule 17 of CPC to amend

the written statement.

2.

Heard the learned counsel Sri.Devaraj.A.S., for

petitioner/defendant. Perused the writ petition papers.

3.

Learned counsel for the petitioner would submit

that suit of the respondent/plaintiff is one for decree,

directing the defendant to quit, vacate and deliver vacant

physical possession of the suit schedule property and for

arrears of rent. The suit is at the stage of further evidence

of defendant. At that stage, petitioner/defendant filed

I.A.No.25 under Order VI Rule 17 of CPC to amend the

written statement to include counter claim. The Trial Court

- 3 -

under

impugned order rejected I.A.No.25 filed for

amendment of written statement.

4.

Learned counsel for the petitioner/defendant

would contend that the Trial Court is not justified in

rejecting application for amendment of written statement,

without examine as to such amendment would be

necessary for deciding the dispute between the parties.

Learned counsel would further submit that wife of the

respondent/plaintiff had entered into rent agreement with

defendant

on

receiving

Rs.5,50,000/-

from

the

petitioner/defendant.

The

amendment

to

written

statement to include counter claim was to direct the

respondent/plaintiff to refund a sum of Rs.5,50,000/-

received

by

the

wife

of

respondent/plaintiff

under

agreement dated 15.07.2016.

5.

The Trial Court under impugned order observed

that in a suit for eviction, it is for the plaintiff to establish

landlord tenant relationship and also it is for the Court to

- 4 -

examine as to whether tenancy is validly terminated,

rejected application of the petitioner/defendant.

6.

Admittedly, suit is at the stage of evidence of

DW1. No amendment to include counter claim after

framing of issues is permissible. Since the amendment

sought to written statement is to include counter claim,

such counter claim cannot be sought once the issues are

framed, in terms of the decision of the Hon'ble Apex Court

in the case of ASHOK KUMAR KALRA v/s WING

CDR.SURENDRA AGNIHOTRI AND OTHERS ((2020) 2

SCC 394). The Hon'ble Apex Court in the above said

decision has held that defendant cannot be permitted to

file counterclaim after the issues are framed and after the

suit is proceeded substantially. It would defeat the cause

of justice and be detrimental to the principle of speedy

justice as enshrined in the objects and reasons for the

particular amendment to CPC. Relevant paragraphs 18 and

21 of the above decision reads as follows:

- 5 -

“18. As discussed by us in the preceding

paragraphs, the whole purpose of the procedural

law is to ensure that the legal process is made

more

effective

in

the

process

of

delivering

substantial justice. Particularly, the purpose of

introducing Rule 6-A in Order 8 CPC is to avoid

multiplicity of proceedings by driving the parties to

file separate suit and see that the dispute between

the parties is decided finally. If the provision is

interpreted in such a way, to allow delayed filing of

the counterclaim, the provision itself becomes

redundant

and

the

purpose

for

which

the

amendment is made will be defeated and ultimately

it leads to flagrant miscarriage of justice. At the

same

time,

there

cannot

be

a

rigid

and

hypertechnical

approach

that

the

provision

stipulates that the counterclaim has to be filed

along with the written statement and beyond that,

the Court has no power. The Courts, taking into

consideration the reasons stated in support of the

counterclaim, should adopt a balanced approach

keeping in mind the object behind the amendment

and to subserve the ends of justice. There cannot

be any hard and fast rule to say that in a particular

time the counterclaim has to be filed, by curtailing

the discretion conferred