Ramesh Electricals v. Naguru Hymavathi
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRP No.2154 of 2016 Date:09.08.2016 Between:
Ramesh Electricals Rep by is Proprietor Kommanuru Ramesh, Proddatur Town, Kadapa District.
... Petitioner.
AND Naguru Hymavathi
...Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRP No.2154 of 2016 JUDGMENT:
This revision is preferred questioning order dated 30-03-2016 in I.A.No.751/2015 in O.S.No.182/2014 on the file of Principal Junior Civil Judge, Proddatur.
2. Revision petitioner herein is plaintiff and respondent herein is defendant in the above referred suit O.S.No.182/2014. Parties are hereinafter referred to as plaintiff and defendant for convenience sake.
3. Plaintiff filed the suit for relief of delivery of possession of plaint schedule property and also for arrears of rents for use and
occupation by way of damages and costs. Defendant filed written statement disputing plaint averments including the damages claimed, thereafter issues were framed on 12-03-2015 and chief affidavit of P.W.1 was filed on 05-06-2015 and while the matter was coming for cross-examination of P.W.1, at that stage, this I.A.No.751/2015 was filed seeking amendment of written statement by inserting Para No.12 making counter claim that the tenancy between plaintiff and defendant has came to an end on 08-03-2014 and that the plaintiff is nothing but encroacher of the suit schedule property and the property is required for defendant and her husband for their business etc.
This application was resisted by the plaintiff mainly on the ground that defendant cannot take contradictory stand particularly for the purpose of counter claim and that the proposed amendment introduces totally a new case and would completely change the nature of original defense, therefore not maintainable under law. Trial Court, on a consideration of these aspects, allowed the amendment and permitted the defendant to make the counter claim particularly by holding that if a separate suits are filed, there would be chances of conflicting views and multiplicity of litigations and to avoid that, amendment was permitted. Aggrieved by the same, plaintiff preferred this revision.
4. Heard both sides.
5. Advocate for revision petitioner submitted that counter claim cannot be pleaded by way of amendment when a specific provision is contemplated under Order 8 Rule 6A CPC and the trial Court ignoring this, erroneously passed the order and permitted the defendant to amend his written statement.
He further submitted that as per proviso to Order 6 Rule 17, amendment cannot be permitted after commencement of trial and for these two reasons, the order of the Court below is illegal and without
jurisdiction. Advocate for revision petitioner further submitted that the remedy of defendant is to file a fresh suit and even now his claim is within the period of limitation and therefore, counter claim by way of amendment is not permissible.
6. On the other hand, Advocate for defendant submitted that trial Court rightly permitted the defendant to amend the written statement for counter claim to avoid conflicting decisions and multiplicity of proceedings. He further submitted that trial Court has ample power under Order 6 Rule 17 CPC to permit amendment to safeguard the interest of both parties and further submitted that the defendant could not take this amendment earlier because of the mediation through elders and also due to the change of pecuniary jurisdiction, therefore the objection of the plaintiff with regard to proviso under Order 6 Rule 17 CPC is not tenable. He also referred to a decision of Hon'ble Supreme Court in BOLLEPANDA P. POONACHA v. K.M.
MADAPA[1].
7. In reply, Advocate for plaintiff further submitted that defendant clearly stated in her written statement that she has already issued a notice under Section 106 of Transfer of Property Act and contemplating to take necessary legal action in pursuance of that notice, in view of such specific pleading, remedy of the defendant is to file a separate suit.
8.
Now the point that would arise for my consideration in this revision is whether order of the Court below is legal, proper and correct?
9. Point:- The main objection of the plaintiff is that plea of counter claim is not permissible by way of amendment. It is the specific
contention of the advocate for plaintiff that Order 8 Rule 6A CPC provide for counter claim that relief cannot be claimed by way of amendment. Order 8 Rule 6A CPC reads as follows:- "ORDER VIII [WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]
1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty day, he shall be allowed to file the same on such other days, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 1-A xxxxxxx 2.xxxxxxxxxx 3.xxxxxxxxxx 4.xxxxxxxxx 5.xxxxxxxxx 6.xxxxxxxx 6-A. Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter claim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.
(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints."
10. It may be useful to refer Order 6 Rule 17 also to appreciate the submissions of both parties:- "ORDER VI PLEADINGS GENERALLY
1. Pleading._"Pleading" shall mean plaint or written statement.
2.xxxxxx 3.xxxxxxx 4.xxxxxxx 5.xxxxxxx
6.xxxxxxx 7.xxxxxxx 8.xxxxxxx 9.xxxxxxx 10.xxxxxx 11.xxxxxxx 12.xxxxxxx 13.xxxxxxx 14.xxxxxxx 15.xxxxxxx 16.xxxxxxx
17. Amendment of Pleadings._ The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
11. From a plain reading of these two provisions, it is clear that a party is at liberty to amend the pleadings provided the same is necessary for the purpose of determining the real questions in controversy between the parties. As per Order 8 Rule 6A, defendant has a right to make counter claim besides the right of pleading set off in the very same suit filed by the plaintiff and the only rider is that claim shall not exceed the pecuniary limits of that Court. Here admittedly, defendant has not invoked Order 8 Rule 6A CPC, but he came forward with an amendment application, after commencement of trial. Proviso to Order 6 Rule 17 prohibits any amendment after commencement of trial and the only exception is if the Court is satisfied that in spite of due diligence, the party could not take such step earlier.
12. In the above referred decision of Hon'ble Supreme Court, a suit was filed claiming title over the plaint schedule property in which, the defendant therein filed written statement and thereafter, application for amendment of written statement with a prayer to pass decree for recovery of possession of the suit land and the trial Court allowed
that application, which was challenged before High Court and High Court dismissed the revision upholding the trial Court's order and when the matter was carried with Special Leave Petition Hon'ble Supreme Court, while drawing distinction between Order 6 Rule 17 and Order 8 Rule 6A CPC held that the impugned orders of both the trial Court and High Court cannot be sustained and observed that the defendant would be entitled to file a suit for the relief claimed that by way of amendment. The facts of the above case are almost similar to the case on hand and in this case also, as per the submission of the Advocate for plaintiff, the period of limitation for the counter claim made by the defendant is not expired and even till today, he has a right to file suit for the counter claim made by way of amendment. So relying on the above referred Supreme Court decision, the contention of the plaintiff that the defendant cannot make counter claim by way of amendment of the written statement is to be accepted. 13.
For these reasons, the impugned order dated 30-03-2016 permitting amendment cannot be sustained and the same is liable to be set aside and accordingly, order dated 30-03-2016 is set aside consequently, I.A.No.751/2015 in O.S.No.182/2014 on the file of Principal Junior Civil Judge, Proddatur is dismissed. It is open to the defendant to file suit for the relief claimed as counter claim in the written statement, if he so desires.
14. Accordingly, revision is allowed and as a sequel, miscellaneous petitions, if any, pending in this revision, shall stand disposed of. No costs.
_________________________ JUSTICE S. RAVI KUMAR Date:09.08.2016 mrb
[1] AIR 2008 SUPREME COURT 2003