NAGPUR BENCH : NAGPUR v. Anil Panjwani, the trial court ought to have rejected the application

passed by the trial court on 22.2.2012 allowing an application filed by the defendants-State for amendment of the written statement with a view to file the counter claim. The petitioner is the original plaintiff. A suit was filed by the petitioner for recovery of an amount of Rs. 2,43,834/- which the respondents-State failed to pay to the petitioner towards execution of the contract of preparation of laminated job cards. The State filed its written statement on

19.7.2010. After the issues were framed on 1.12.2011, the defendants filed an application for amendment of the written

3.10.wp2988.12.odt 2 statement under Order 6, Rule 17 of the Code of Civil Procedure. By the proposed amendment, the respondents wanted to introduce a counter claim against the petitioner praying for a decree of Rs.2,52,565/- with interest. Though the amendment application was strongly opposed by the petitioner, the trial court, by impugned order dated 22.2.2012, allowed the amendment application. It is submitted on behalf of the petitioner that the trial court could not have allowed the amendment application after the issues were framed and the trial had commenced unless the respondents had satisfactorily proved that they were not in a position to amend the written statement at an appropriate stage in spite of due diligence. It is submitted that the counter claim cannot be filed in the absence of the written statement and since the respondents wished to incorporate the counter claim in the written statement, the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure. applied to the facts of the case. It is then submitted on behalf of the petitioner that on a consideration of the judgments reported in AIR 2009 Bombay 133 – Nagnath Jagannath Lomate and another .vs. Narsing Sambha More and others and 2003 (4) Mh.L.J. 579 - Ramesh Chand Ardawatiya .vs.

3.10.wp2988.12.odt 3 Anil Panjwani, the trial court ought to have rejected the application for filing of the counter claim. It is submitted that the reliance placed by the trial court in the judgment reported in AIR 1987 Supreme Court 1395 – Mahendra Kumar and another .vs. State of Madhya Pradesh and others was misplaced as the said judgment was rendered by the Hon’ble Supreme Court before the provisions of Order 6 Rule 17 of the Code of Civil Procedure were amended. Shri Dharmadhikari, the learned AGP appearing on behalf of the respondents-State, submitted that the trial court rightly did not refer to the provisions of Order 6 Rule 17 of the Code of Civil Procedure and referred to the provisions of Order 8 Rule 6A of the C.P.C. and the judgment reported in AIR 1987 Supreme Court 1395 – Mahendra Kumar and another .vs. State of Madhya Pradesh and others to allow the application filed by the respondents. The learned AGP submitted that considering the object of introduction of the provisions of Order 8 Rule 6A of the Code of Civil Procedure, the trial court rightly exercised the discretion in favour of the respondents by allowing the application for permission to raise the counter claim. On a consideration the facts of the case and the impugned order, it appears that the trial court has

3.10.wp2988.12.odt 4 rightly exercised the discretion in favour of the respondents and permitted them to file the counter claim against the petitioner. The trial court rightly held that in the peculiar facts of the case, it was necessary to give more thrust on the provisions of Order 8, Rule 6A of the Code of Civil Procedure rather than the provisions to Order 6, Rule 17 thereof. According to the trial court, the object of Rule 6A of Order 8 was to avoid multiplicity of proceeding and hence in the interest of justice, it was necessary to permit the respondents to file the counter claim. The trial court rightly relied on the decision of the Hon’ble Supreme Court reported in AIR 1987 Supreme Court 1395 – Mahendra Kumar and another .vs. State of Madhya Pradesh and others wherein it is held by the Supreme Court that preferring a counter claim within a period of three years is tenable, no matter whether it has been preferred after the filing of the written statement or not. Considering the facts of the case, the trial court was justified in observing that the rigours of the provisions of proviso to Order 6 Rule 17 of the Code of Civil Procedure could not have been made applicable to the situation in hand specially when the provisions of Order 8 Rule 6A of the Code of Civil Procedure give a right to the defendants to raise a counter claim against

3.10.wp2988.12.odt 5 the plaintiff in the same suit. Not only with a view to avoid multiplicity of proceedings but with a view to save expenses of the parties, the court should normally allow the defendant to file the counter claim if the same is not barred by limitation. The judgment reported in 2003 (4) Mh.L.J. 579 - Ramesh Chand Ardawatiya .vs. Anil Panjwani and AIR 2009 Bombay 133 – Nagnath Jagannath Lomate and another .vs. Narsing Sambha More and others and relied on by the counsel for the petitioner, cannot be made applicable to the facts of the case as it is laid down by the Hon’ble Supreme Court in the judgment reported in 2003 (4) Mh.L.J. 579 - Ramesh Chand Ardawatiya .vs. Anil Panjwani that when there is no written statement on record, a counter claim is not tenable. In the case before the Hon’ble Supreme Court, the ex parte evidence of the plaintiff was recorded on three dates of hearing and when the defendant and his counsel were not present, the arguments of the plaintiff were heard and when the judgment was reserved, the defendant moved an application under Order 18 Rule 17 of the Code of Civil Procedure. After the same was allowed subject to payment of costs, the defendants had moved an application proposing to place the written statement under Order 8 Rule 6A of the Code of Civil

3.10.wp2988.12.odt 6 Procedure on record. In that background, the Hon’ble Supreme Court had held that when there is no written statement on record, the counter claim is not tenable. Similarly, in the judgment reported in AIR 2009 Bombay 133 – Nagnath Jagannath Lomate and another .vs. Narsing Sambha More and others, the concerned defendant had not filed the written statement. The judgment reported in AIR 2009 Bombay 133 – Nagnath Jagannath Lomate and another .vs. Narsing Sambha More and others also cannot be made applicable to the peculiar facts of the present case, The trial court has rightly, in the interest of justice, and looking into the object to the provisions of Order 8, Rule 6A of the Code of Civil Procedure, exercised the discretion in favour of the respondents to allow the application for permission to raise the counter claim. The order cannot be interfered with in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE GULANDE