Ajay Tewari, J.
1 This order shall dispose of CR Nos. 1197 & 1198 of 2009 as common questions of facts and law are involved. Brief facts of the case are taken from CR No. 1197 of 2009.
2 This petition has beeniiled against the order dated 07.02.2009 whereby the application for amendment of the counter claim has been allowed.
3 The petitioner had filed a suit seeking permanent injunction originally against respondents No. 1 & 2 restraining them from interfering in the management, control and possession over the Dera Santpura/Gurudwara Santpura claiming that he had been handed over the possession and management by way of compromise dated 21.03.2000. On the application moved by the respondent No. 3, it was impleaded as defendant. The said respondent filed a written statement denying the validity of the alleged compromise dated 21.03.2000. The other averments made in the plaint were also denied. It was stated that the petitioner being a sewadar/trustee had been receiving donations illegally without authority. When he was asked to give accounts, he filed the present suit. Respondent No. 3 also filed a counter claim dated 24.03.2003 praying that the petitioner be restrained from interfering in the management and control of the trust properties and further from obstructing the operation of Gollak and collecting rent from the tenants of the Trust. Subsequently, by application dated 30.05.2008, amendment was sought in the counter claim to the effect that by a resolution dated 27.12.2003, the petitioner had been removed from the management of Gurudwara Trust as trustee and thus, claiming a mandatory injunction directing the petitioner to hand over the possession of the premises in his control. Ld. Trial court having allowed this application, the petitioner has filed the instant petition.
4 Learned counsel for the petitioner has raised two main arguments. His first argument is that under Order 1 Rule 68 only that cause of action can be incorporated in the counter claim as has arisen before the filing of the written statement. In the present case, the resolution dated 27.12.2003 was passed after the written statement filed on 30.03.2003 and thus, the said amendment could not be allowed. His second argument is that the application for amendment was made almost 5 years after the resolution was passed and it was beyond the period of limitation.
5 In support of his arguments, he has relied upon the following judgments :
In the case of Kulshresth v. Bahadur Singh, reported as 1999(1) R.C.R.(Civil) 308 : 1998(3) PLR 736, this court has held as follows : "The next point that remains to be considered is whether Rule 6A(l) of Order VIII of the Code of Civil Procedure bars the filing of a counter claim after the filing of a written statement. This point need not detain us long, for rule 6A(1) does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. What is laid down under Rule 6A(l) is that a counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1) of the Code of Civil Procedure. As the cause of action for the counterclaim had arisen before the filing of the written statement, the counterclaim was therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule."
6 In the case of Mahendra Kumar v. State of Madhya Pradesh, 1987(3) SCC 265, Hon''ble Supreme Court has held as follows :
"It has been held by this Court that right to file a counter claim under Order VIII Rule 6A of the CPC is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing written statement or extended date of filing written statement, such counter claim can be filed even after filing the written statement."
7 In the case of Ganu v. Manik, reported as 2003(3) Civ. C.C. 133, Hon''ble Bombay High Court has held as follows :
"In the present matter, what is being sought to be done, is the amendment in the counter claim, on the basis of the cause of action which arose much after filing of the written statement as per the defendants themselves. So far as regards the counterclaim is concerned, there is no dispute that it was filed well within time and appeared to have been rightly taken on record. However, amending the counterclaim on the basis of the subsequent cause of action, cannot be related back to the date of written statement or the counter claim first filed. In the instant petition, looking at the matter from any angle, it is clear that amending the counter claim by adding certain additional claims that too, the cause of which arose much after the filing of the written statement or counter claim, would virtually amount to filing of fresh counter claim after the limited period under Order VIII, Rule 6A was over. In the opinion of this Court such a counter claim by way of amendment to the original counter claim, in no case can be permitted muchless when the cause of action for the amended counter claim arose after the date of filing of the written statement or after the date of raising of the first counter claim."
8 On the other hand learned counsel for the respondents relied on the decision of this Court in the case of Milkha Singh v. Parshotam Dass, reported as 2007(1) RCR (Civil) 495,
"This court in Suraj Mal v. State of Haryana, 1999(2) RCR(Civil) 408 (P&H): 1999(2) PLJ 303, observed that all amendments necessary to determine questions in controversy are to be allowed. Besides, it is the duty of the court to determine the rights of the parties and not to punish them for the mistakes if any. However, amendment is to be disallowed when: (1) the application is filed mala fide (2) withdraws admissions made without explaining them (3) takes away vested rights of the other party and the other party cannot be compensated into terms of cost and (4) claim has become time barred when amendment is sought. In Punjab National Bank v. Indian Bank, 2003(2) RCR(Civil) 668(SC): 2003(1) PLJ 458, it was observed that amendment of a plaint is generally not to be disallowed except : (i) where a time barred claim is sought to be introduced, or (ii) where it changes the nature of suit itself or (iii) it is mala fide or (iv) the other party cannot be placed in the same position had the plaint been originally filed correctly i.e. The other side has lost right of a valid defence by subsequent amendment."
9 In the case of Pankaja & another v. Yellappa (dead) by LRs & others, 2004(3) R.C.R.(Civil) 723: (2004) 6 SCC 415, Hon''ble Supreme Court held as follows :
"We think that the course adopted by this Court in Ragu Thilak D. John case applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."
10 The law in regard to amendment of the plaint is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of the case.
11 It is in the context of these judgments that the present controversy has to be decided. To take the second argument first, the question is whether on the basis of the resolution dated 27.12.2003, a suit to divest the petitioner of the management of the Gurudwara under his control would be barred by limitation. In my opinion, it cannot be conclusively held so at this stage. Which is not to say that this court is holding that the claim is within limitation but only that this matter will be examined by the Trial Court. Merely because of the inaction of a charitable body if it is proved that such a binding resolution was indeed passed then it cannot be held at this stage that mere operation of time would perpetuate an invalid claim. It must be noticed that in the present case the dispute is between an individual and a public trust and the interest of justice can not be held subservient to the individual interest of the petitioner to such an extent as to bar even examination of the claim of the public trust.
12 As regards the objection relating to the cause of action having occurred after the written statement filed even though at first blush the argument sound attractive yet keeping in view the dictum in the case of Milkha Singh (supra) and Pankaja & another (supra) it has to be held that this amendment which goes to the root of the matter and is necessary to determine the real controversy between the parties, would relate back to the date of filing the original counterclaim. As mentioned above by the Supreme Court in case of Pankaja & another (supra) granting of amendment would subserve the ultimate cause of justice and would avoid further litigation.
13 At this stage it would be necessary to notice the judgment of Usha Balashaheb Swami & Others v. Kiran Appaso Swami & others, reported as 2007(2) R.C.R.(Civil) 830 : 2007(1) R.C.R.(Rent) 457:2007(2) R.A.J. 502: 2007 (1) RLR page 631, where in Hon''ble Supreme Court held as follows:
"For the reasons aforesaid, we are unable to sustain the judgment of the High Court rejecting the application for amendment of written statement on the ground that if such amendment was allowed it would seriously prejudice the plaintiff. There is yet another aspect of the matter. The trial court on consideration of the written statement as well as the application for amendment of the written statement, in its discretion allowed the application for amendment of the written statement. The High Court ought not to have reversed the said order of the trial court, rejecting the application for amendment of the written statement, when the trial court has exercised its discretion in allowing the amendment of written statement on consideration of the principles of law and the material on record."
14 In the case of Puran Ram v. Bhaguram & another, reported as 2008(2) Supreme 166, Hon''ble Supreme Court held as follows :
"We may now take into consideration as to whether the High Court, in the exercise of its power under Article 227 of the Constitution, was justified in rejecting the application for amendment of the plaint, which in the discretion of the trial court, was allowed. We are of the view that the High Court ought not to have interfered with the order of the trial court when the order of the trial court was passed on sound consideration of law and facts and when it cannot be said that the order of the trial court was either without jurisdiction or perverse or arbitrary."
15 In these circumstances, I hold that the amendment of the counter claim cannot be assailed.
16 Consequently, this petition is dismissed
