Sri. Ryaz Ahmed, Sri. Naquib Ahmed, Smt. Hafsa and Zulekha Bai Vs Lalith Kumar Chopra Builders A partnership firm

@JUDGMENTTAG-ORDER

H.N. Nagamohan Das, J.@mdashThis writ petition is filed to quash the order dated 27.07.2006 in O.S. No. 9683/1997 passed by the City Civil Judge, Bangalore city rejecting I.A. No. V filed under Order 6 Rule 17 CPC to amend the written statement.

2. The parties are referred to their status before the trial Court.

3. The plaintiff filed O.S. No. 9683/1997 against the defendants for a decree as under:

A. Declare that the defendants or any of them have no manner of right to interfere with the lawful and peaceful enjoyment of the Schedule property in any manner; and

B. Grant a Decree of permanent injunction restraining the defendants their men, servants and agents whosoever from in any manner interfering with either the lawful possession and enjoyment of the ongoing construction thereon of the plaintiff in any manner whatsoever;

C. Grant costs and such other reliefs as may be deemed fit and appropriate to grant in the circumstances of the case in the interest of justice and equity.

4. The defendants entered appearance before the trial Court, filed written statement, opposing the claim of plaintiff. The defendants specifically pleaded that a portion of the schedule property is a play area and on the same plaintiff is not having exclusive right. After hearing both the parties the trial Court granted an order of temporary injunction in favour of plaintiff and the same came to be confirmed by this Court. Thereafter the trial Court framed issues and at the time of evidence of plaintiff the defendant filed I.A. No. V under Order 6 Rule 17 CPC to amend the written statement. The trial Court after hearing both the parties passed the impugned order rejecting I. A. No. V. Hence, this writ petition.

5. Heard arguments on both the side and perused the entire writ papers.

6. The proposed amendment contains two parts; firstly incorporation of additional facts and secondly for additional prayer by way of counter claim directing the plaintiff to demolish the construction of a portion on the plaint schedule property. Order 8 Rule 6-A specifies that the defendant may make a counter claim against the plaintiff in respect of a cause of action accrued either before or after filing the suit. It is further specified that the defendant has to make a counter claim before delivery of his defence or before the time limited for delivery of his defence expired. A reading of Rule 6-A of Order 8 manifestly makes it clear, that after filing the written statement by the defendant if a cause of action has arisen, then the defendant is entitled to make counter claim. In the instant case, according to the defendants, the cause of action for counter claim has arisen after filing the written statement. Therefore there is no bar under Rule 6-A of Order 8 for making a counter claim by the defendants in respect of a cause of action which has arisen after filing the written statement.

7. The Supreme Court in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. 2006 (4) SCC 384 held:

The real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. However, court should not go into correctness or falsity of the case in the amendment, nor record a finding on the merits of amendment at the stage of considering the prayer for amendment.

8. The Supreme Court in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., held, that in the case of written statement the Courts are inclined to be more liberal in allowing amendment of written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.

9. Keeping this principle of law as enunciated by the Supreme Court in the decisions referred to supra it is necessary to examine the fact situation in the instant case. The plaintiff has prayed for a negative relief in the plaint. In the plaint schedule the measurement of the properties are not given. On the other hand the defendants claim that a portion of the schedule property is play area on which the plaintiff has no right, title and interest. Now under the proposed amendment the defendant wants to make a counter claim for a mandatory injunction to remove the built up portion on the play area. Instead of driving the defendants to file separate suit it will be most appropriate to allow the counter claim of defendants particularly when the prayer of plaintiff is for a negative declaration. By allowing the counter claim the public time will be saved, the hardship and inconvenience to the parties will be lessened and it will prevent multiplicity of proceedings and also inconsistent orders or verdicts. The trial Court without considering this aspect of the matter committed an error in rejecting the application filed by the defendant for amendment of written statement.

10. The reasoning of the trial Court that the proposed amendment is not supported by any evidence on record is contrary to law declared by the supreme Court in Rajesh Kumar Agarwal''s case. At the time of considering the prayer for amendment the Court should not venture to give findings on merits. On this ground also the impugned order is liable to be quashed.

11. Learned Counsel for respondents relying on a judgment of Supreme Court in the case of Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, contends that no counter claim be allowed in respect of a cause of action which has arisen after filing the written statement. The Supreme Court in Mahendra Kumar''s case held, that counter claim by the defendant can be allowed after filing the written statement. At the time of filing the written statement if there is no cause of action to the defendant then the question of pleading counter claim at the first instance will not arise. Subsequent to filing of written statement if a cause of action has arisen then definitely the defendant can make counter claim in the written statement by way of amendment. Therefore there is no inconsistency in the finding of Supreme Court in Mahendra Kumar''s case and in Rajesh Kumar Agarwal''s case. In both the cases the consistent view is that, if cause of action has arisen subsequent to filing of written statement then the defendant is entitled to make counter claim in order to prevent the multiplicity of proceedings and conflicting decisions. The prayer in the suit and the prayer in the counter claim is between the same parties and in respect of same subject matter and before the Court having competent jurisdiction. Therefore the test is, whether a counter claim can be allowed to resolve the real controversy between the parties. In the facts and circumstances of this case, I am of the opinion, that the proposed amendment of written statement making a counter claim is necessary to resolve the real controversy between the parties and also to prevent the multiplicity of proceedings, conflicting of decisions and to save the public time and to lessen the hardship to the parties.

12. The other decisions relied on by the learned Counsel for respondent in the case of Mangulu Pirai Vs. Prafulla Kumar Singh and Others, and Sugesan and Co. Pvt. Ltd. Vs. Hindustan Machine Tools Ltd., , have no application to the facts of this case.

13. For the reasons stated above, the following;

ORDER

I. Writ petition is allowed.

II. The impugned order dated 27.07.2006 is hereby quashed.

III. I.A. No. V is allowed permitting the defendants/petitioners to amend the written statement before the trial Court. The respondent is entitled to file his defence to the counter claim.

IV. The trial Court is directed to proceed with the matter in accordance with law.

V. Since the matter is pending between the parties for a long time, the trial Court is directed to expedite the matter and to dispose the main suit on or before December, 2007.

VI. Both the parties shall cooperative for expeditious disposal of the matter.