CR N1197 v. Mahant Karam j it Singh 8 ot hers

im pleaded as defendant The said respondentfiled a writ t en st at em ent denying t he vaiidit y of t he alleged com prom ise 21032000 dat ed Um a 14: 11 Scanned True Copy of Original plaint were PHHC,Chandigarh The ot her averm ent s m ade denied I t was st at ed t hat t he pet it ioner JOYTI RANI t he 2016.03.28 16:22 I attest to the accuracy and integrity of this document 418 CR Nol97Jof I J being a wit hout 2009 08141 2m I iad been receiving donat ions illegaliy When he was asked t o give account s he filed t he present suit RespondentNo3 also filed a count er claim dat ed 24032003 praying t hat t he pet it ioner be rest rained int erferingin t he m anagem entand cont rol of t he t rust propert ies and furt her from obst ruct ingt he operat ionof Gollak and collect ing from t he t enant s t he Trust Subsequent ly by applicat ion dat ed 30052008 am endm ent was sought in t he count er t hat by a resolut ion dat ed 27122003 t he effect t he pet it ionerhad claim t o been rem oved from t he m anagem entof Gurudwara Trust as t rust ee and t hus claim inga m andat oryinj unct iondirect ingt he pet it ionert o hand over t he possessionof t he prem isesin his cont rol Ld Trial court havingallowed t his applicat ion t he pet it ioner has filed t he inst ant pet it ion Learned counsel t he pet it ionerhas raised t wo m ain His first argum entis t hat under Order 1 Rule 68 only t hat cause of act ion can be incorporat edin t he count er claim as has arisen before t he fiiing of t he writ t en st at em ent I n t he present caset he resolut ion dat ed 27122003 was passedaft ert he writ t en st at em entfiled on 30032003 and t hus t he said am endm ent could not be allowed His second argum ent I S t hat t he applicat ionfor am endm entwas m ade aim ost 5 years aft er t he resolut ion was passedand it was beyondt he periodof I im it at ion I n su pport of h is argu m e nt s he has relied u pon t he followingj udgm ent sl I n t he case of Kulshrest h vs Bahadur Singh report edas m Q 0 0 I C5 I Z C I 08 r a Z 1998 Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh PLR 736 t his court has held as followsl The next point t hat rem ains JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document t o be considered is o 419 41148 CR Noell971of 2009 O8MI J whet herRule 64 of Order VI I I of t he Code of Civil Procedurebars t he filing of a count er claim aft er t he filingof a writ t en st at em ent This point need not det ain rule 6ll US I ong for does not it bar t he filingof a count ereclaim by t he defendant aft er he is I aid down had filed t he writ t en st at em ent on t he face of What under RuI e 61 is t hat a count er claim can be filed provided t he cause of act ion defendant before t he defendant had accrued t o delivered t he defence or before t he t im e I im it ed for delivering his defence has expired whet her such count er claim is in t he nat ure Court of a claim for dam agesor not The High our opinionhas m isread and m isunderst ood t he provision of Rule 6A in holding t hat as t he t he had filed t he count er claim aft er t he I ing of writ t en st at em ent t he count er claim was m aint ainable The finding of get any support from Rule 6A61 Procedure As t he cause had arisen before t he filing of t he writ t en st at em ent of act ion for t he count erclaim t he t he High Court does not t he Code of Civil count erclaim Art icle 113 of I im it at ion t herefore quit e m aint ainable t he Lim it at ion Act 1963 Under t he period of accrues has been provided for any suit t hree years from t he dat e t he right t o sue for which no n 0 C I C Z 08 r m 7 Z OL period of Schedule 11 I im it at ion is provided elsewhere t he I n t he case of Mahendra Kum ar vse St at e of Madhya Pradesh 1987 SCC 265 Honble Suprem eCourt has held as follows I t has been held by t his Court t hat right t o file a count er claim under Order VI I I Rule 6A of t he CPC is referablet o t he dat e of accrual of t he cause of act ion I f t he cause of act ion had arisen before or aft er t he filing of t he suit and such cause of act ion cont inued upt o t he dat e of filing writ t en st at em ent or ext ended dat e of filing JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh l 1 Q 0 C I C I Z m 0 I 08 r 7 Z 420 r114g CR Nol971of 2009 OSMI 1 4e writ t en st at em ent such count er claim can be filed even aft er filing t he writ t en st at em ent I l I n t he case of Ganu vse Manik report ed as 200331 Cive CeCe133 Honble Bom bayHigh Court has held as followsl I n t he present m at t er what is being sought t o be I S t he am endm ent basis of t he cause t he writ t en in t he count erclaim on t he of act ion which arose m uch aft er filing st at em ent t he defendant s t hem selves concerned t here is no disput e t hat So far regards t he count erclaim filed well it was wit hin t im e and appearedt o have been right ly t aken on record However am ending t he count erclaim on t he subsequent cause basis of relat ed back t o t he dat e of writ t en st at em ent count er claim first of act ion I n t he inst ant pet it ion I ooking t he cannot t he t he m at t er from any angle it is clear t hat am ending t he count er claim by adding cert ain addit ional claim s t he filing of which arose m uch aft er t he cause t hat t oo t he writ t en virt uallyam ount st at em ent count er t o filing of fresh count er claim aft er t he I im it ed periodunder Order VI I I RuI e 6A was I n t he opinionof t his Court such a count er claim by way of am endm ent t o t he originalcount er claim in no case be perm it t edm uchless when t he cause am endedcount er claim arose aft er of act ion for t he t he dat e of filing of t he writ t en st at em ent or aft er t he dat e of raising of t he first count er claim I l On t he ot her hand I earned counsel t he respondent s relied on t he decision of t his Court in t he case of Milkha Singh Vse Parshot am Dass report ed as 200711 RCR Civill 495 This in Suraj Mal a St at e of Haryana 19992 RCRCivill 408 P8H17 1999 PLJ 303 observed t hat all am endm ent s necessary t o det erm ine quest ionsin cont roversy are t o be allowed Besides it I S 1 JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh 421 41146 CR No19710f 2009 08M1 J eV m 5 t o det erm ine t he right s of t he t he court t he dut y of part iesand not However am endm ent t o punish t hem for t he m ist akes if any is t o be disallowed when t he applicat ion I S filed m ala fide 29 wit hdraws adm issions t hem 639 t akes away vest ed m ade wit hout t he ot her part y and t he ot her part Y cannot be right sof int o t erm s 49 claim has becom e t im e barred when am endm ent is sought I n m r 0 0 I C5 I Z a r C6 C 7 Z t 1 Punj abNat ional RCRCivil 2003 observedt hat am endm ent of 668SCI 2 Bank vsndian Bank PLJ 458 2003 be disallowedexcept a plaint is generallynot where a t im e barred claim is t o or 6ii where sought t o be int roduced nat ure of suit part y cannot be placed in plaintbeen originalliled correct ly i it self or oii9 it is m ala fide or t he sam e posit ion had t he e The ot her side it changes t he 19t he ot her I ost am endm ent I l right of a defence by subsequent I n t he case of Pankaj a a anot her vsa Yellappa1eadl by LRs 8t ot hers 2004 6 SCC 415 Honble Suprem eCourt held as followsl We t hink t hat RaguThilak De John case applies appropriat elyt o t he t he course adopt edby t his Court fact s of t his case The court s below have proceededon an assum pt iont hat appellant sI S ipsofact o barred by t he I aw of relief and am ount s t he am endm ent sought for by t he I im it at ion t o int roduct ion of different t han what t he plaint iffhad asked for in t he originalplaint Ne not agree wit h t he court s below t hat t he am endm ent soughtfor by t he plaint iffint roduces a different relief so as t o bar t he grant of prayer for am endm ent fact ual basis has already been I aid down in t he plaint in necessary regardt o t he t it le which of course respondent I n his writ t en st at em ent was denied by t he which will be an t o be decided in a t rial Therefore in t he fact s of JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh I SSue 422 rk114B CR Noell971of 2009 OSMI e 6 t his case it will be incorrect t o com e t o t he conclusion t hat by t he am endm ent different relief I l t he plaint iff will be int roducinga The I aw in regard t o am endm ent of t he plaint is also quit eclear and consist ent t hat t here is no absolut e rule t hat every case where a relief is barred because of I im it at ion an am endm ent should be allowed Discret ion such cases depends on t he j urisdict iont o allow fact s and circum st ances t he case The or not allow an am endm ent being discret ionary t he sam e will have t o be exercised on fact s a j udiciousevaluat ion of t he and circum st ances in which t he am endm ent is sought I f t he grant ingof an am endm ent really subserves t he ult im at e cause j ust iceand avoids furt her I it igat iont he sam e should be allowed There can be no st rait j acketform ula for allowingor d isa I lowing an am endm ent of pleadings Each case depends on t he fact ual backgroundof t he case I t is in t he cont ext of t hese j udgm ent st hat t he present cont roversyhas t o be decided To t ake t he second argum entfirst t h e q uest io n is whet her t he basis of t he resolut ion dat ed 27 22003 a suit t o divest t he pet it ionerof t he m anagem entof t he Gurudwara under his cont rol would be barred by I im it at ion I n m y opinionit cannot be conclusivelyheld so at t his st age Which I S not t o say t hat t his court is holdingt hat t he claim is wit hin I im it at ion but only t hat t his m at t er will be exam ined by t he Trial Court Merelybecause of t he inact ion of a charit able body if is proved t hat such a bindingresolut ion was indeed passedt hen it cannot be 1 Q 0 C0 I C5 I Z O8 Clo e Z L held at t his st age t hat m ere operat ionof t im e would perpet uat e an invalid ciaim Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh I t m ust be not iced t hat l in t he present case t he JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 423 et 1148 CR No19710f 2009 OSMI 1 C 7 disput e I S bet ween an individual and a publict rust and t he int erest ofj ust icecannot be heldsubservient t ot heindividualint erest oft he pet it ionert o such an ext ent as t o bar even exam inat ion of t he claim of t he publict rust As regardst he obj ect ionrelat ingt o t he cause of act ion havingoccurred aft er t he writ t en st at em ent filed even t hough at first blush t he argum ent sound at t ract ive yet keeping in view t he dict um in t he case of Milkha Singt supra and Pankaj aS anot her it has t o be held t hat t his am endm ent which goes t o t he t he m at t er and is necessary t o det erm ine t he real cont roversybet ween t he part ies would relat e back t o t he dat e of filing t he original count erclaim As m ent ioned above by t he Suprem eCourt in case of Pankaj a 8 anot herlpraJ grant ing of am endm ent would subserve t he ult im at e cause of j ust ice and would avoid furt her I it igat ion At t h is st age it would be necessa t o not ice t he j udgm ent of Usha Balashaheb Swam i 8 Ot hers vss Kiran 1 r 0 0 I C5 I Z L I 08 7 Z Om Appaso Swam i a ot hers report ed as 200711 RLR page 631 wherein Honble Suprem eCourt held as followsl For t he reasons aforesaid we are unable t o sust ain t he j udgm ent of t he High Court rej ect ing t he applicat ionfor am endm ent of writ t en st at em ent t he groundt hat if such am endm ent was allowed it would seriously prej udice t he plaint iff There I S yet anot her The t rial court on considerat ion of aspectof t he m at t er t he writ t en st at em ent as well as t he applicat ion for am endm ent of t he writ t en st at em ent in it s discret ion allowed t he applicat ionfor am endm ent of t he writ t en st at em ent The High Court ought not t o have reversed t he said order of t he t rial court rej ect ingt he applicat ion JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh 424 CR l ot1148 1 8 r 0 0 I C I Z 7 r I 08 7 Z Om for am endm ent of t he writ t en st at em ent when t he t rial court has exercised it s discret ion in allowing t he am endm ent of writ t en st at em ent on considerat ion of t he principlesof I aw and t he m at erial on record I l I n t he case of Puran Ram vs Bhaguram S anot her report ed as 20082 Suprem e 166 Honble Suprem eCourt held as followsl vVe m ay now t ake int o considerat ion t o whet her under Art icle 227 of t he High Court t he exercise of t he Const it ut ion rej ect ingt he applicat ionfor am endm ent of in t he discret ion of t he t rial court was allowed it s power j ust ied in t he plaint I Ne are t he view t hat t he High Court ought not t o have int erfered wit h t he order of t he t rial court when t he considerat ion of t he t rial I aw and fact s and when it cannot passed on t he order of said t hat j urisdict ionor perverse or arbit rarYI l t he t rial court was eit her wit hout I n t hese circum st ances I hold t hat t he am endm ent of t he count er claim cannot be assailed Consequent lyt his pet it ionis dism issed 1 1 2010 sont a lJ JUDGE Um a 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document