Sheo Balak Singh v. Hari Shankar Singh

of the defendant-petitioner seeking amendment of written statement in terms of Order 6 Rule 17 C.P.C.

2. The short contention raised by Mr. Shashi Shekhar Dwivedi, Sr. Adv. appearing on behalf of petitioner is that a counter claim had already been raised with regard to certain properties such as residential house at Kalol as also some shops and motor vehicles which were required to 2 Patna High Court CWJC No.847 of 2013 (8) dt.16-04-2013 be included as the subject matter of the partition suit and set out in Schedule I to the written statement, and it was only the details thereof namely cause of action, valuation and the relief sought were required to be stated, having been missed to be mentioned in the written statement by reason of inadvertence on the part of counsel. It is thus contended that the amendment petition ought to have been allowed as the same would neither change the nature of the suit nor cause prejudice to the other side rather it would help to avoid multiplicity of litigation between the parties.

3. Learned Senior Counsel Mr. Rajendra Narayan for the respondents strongly opposes the petition, firstly on the ground that the Proviso to Order 6 Rule 17 has not been complied with and as such the learned Court below has rightly rejected the amendment petition inasmuch as the proposed amendment is barred thereunder. No attempt has been made to show that the amendment could not have been sought before commencement of trial despite exercise of due diligence. Secondly it is contended that clearly from para 7 of the impugned order the evidence of the defendant was closed on 2.8.2012 and the case was since then pending for final arguments and it is only at that stage that the amendment petition came to be filed on 18.8.2012. It is therefore submitted that the amendment petition filed at such a belated stage after framing of issues and closing of 3 Patna High Court CWJC No.847 of 2013 (8) dt.16-04-2013 evidences has rightly not been entertained. Lastly, it has been contended on behalf of the respondents that even though some averments with regard to the Kalol properties etc. were made in the written statement yet the same do not amount to a counter claim, the latter being governed by the provisions of Order 8 Rule 6A CPC. According to this Rule, a counter claim assumes the nature of a plaint having the same effect as a cross suit and requires to be filed before the defendant has delivered defence or before the time limit for the same has expired. It is therefore contended that the averments in the written statement relating to the Schedule I properties could by no stretch of imagination be treated as a counter claim as sought to be treated by the petitioner. In his submission the amendment petition seeks to introduce a new case based on new facts which changes the nature of the suit, apart from being barred by limitation considering that no counter claim was filed within the permissible time.

4. In support of his submissions, Mr. Narayan has relied on 2006 (2) PLJR 489 [Shree Narayan & Anr, vs. Mahendra Prasad Yadav and others) for the proposition that the proviso to order 6 Rule 17 is binding in nature. He has also placed strong reliance on 2006 (4) PLJR 126 [Razia Khatoon vs. Shahunus & others.) to the effect that a counter claim cannot be allowed after the trial has commenced. To further embellish his stand, the decision in 4 Patna High Court CWJC No.847 of 2013 (8) dt.16-04-2013 2004 (2) PLJR 262 Deepak Kumar & Anr vs Shri Binod Kumar Sinha & Ors has been referred to wherein it was held that though there is no legal bar to filing of a counter claim even after filing of written statement in appropriate cases, it should not be at a belated stage.

5. In reply, Mr. Dwivedi, appearing on behalf of the petitioner has reiterated that the requirement of the proviso to Order 6 Rule 17 has adequately been complied with and sufficient cause shown why the amendment could not be sought prior to commencement of trial, namely on grounds of inadvertence on part of counsel. He has relied on the averments in the written statements specifically using the word ‘claim’ to show that in fact what was stated therein were not mere facts but a counter claim duly raised.

6. The petitioner has placed reliance on (2008) 13 SCC 179 [Bollepanda P. Poonacha & Another vs. K.M.Madapa) as well as on 2002 (2) PLJR 187 [Prem Bakshi & Others Vrs. Dharam Dev & Others) to the effect that an amendment in a written statement if allowed would not cause irreparable injury to the other side. He has further relied on AIR 1969 SC 1267 [Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon] to the effect that descriptional or clerical errors are permissible corrections. It is pleaded that substantial justice should be the paramount consideration in line with the principles to be found in (2004) 6 SCC 415 Pankaja & 5 Patna High Court CWJC No.847 of 2013 (8) dt.16-04-2013 Ors vs Yellappa (Dead) by LRs & Ors., and (2006) 4 SCC 385 Rajesh Kumar Aggarwal & Ors vs K.K.Modi & Ors. On the question of delay, support is sought to be taken from the decision in AIR 2003 SC 2985 Sayeeda Akhtar vs Abdul Ahad and also in 1995 (2) PLJR 563 Bhaskar Ganguly & Anr vs Sujit Kumar Gupta, both of which are however in the context of framing of issues and not of much relevance here.

7. Having heard the rival submissions and on consideration of the judicial decisions relied upon by the respective parties, I am in agreement with the submissions of Mr. Rajendra Narayan learned senior counsel for the respondents. In my view the threshold hurdle created by proviso to Order 6 Rule 17 has not been cleared by the petitioner, inasmuch as far from showing due diligence having been exercised, rather it stands admitted that there was inadvertence in filing the amendment petition at the appropriate stage. The same has thus rightly not been entertained by the Court below at the belated stage after arguments had commenced. On a due consideration of the averments in the written statement I am unable to accept the petitioner’s submission that the same amounted to a counter claim and that the amendment sought in that regard by adding the cause of action, violation and relief were merely of a formal nature. The provisions of O.8 R.6B also appear to indicate that where the defendant relies on 6 Patna High Court CWJC No.847 of 2013 (8) dt.16-04-2013 any ground as supporting a counter claim, he must state specifically that he does so as a counter claim in his written statement. It is thus intended that the intention of raising a counter claim should be taken beyond the realm of doubt.

8. The impugned order dated 10.10.2012 passed by the learned Sub-Judge-V, Siwan, in T.S. No. 148/2007 thus suffers from no infirmity and requires no interference.

9. This writ petition accordingly stands dismissed. Fahad. ( Vikash Jain, J. )