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Kashi Biswanath Dev Vs. Paramananda Routrai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 52 and 111 of 1982
Judge
Reported inAIR1985Ori260; 1985(I)OLR256
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 8, Rule 6A
AppellantKashi Biswanath Dev
RespondentParamananda Routrai and ors.
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateK.C. Mohanty, Adv.
DispositionRevisions partly allowed
Cases ReferredT.K.V.S. Vidyapoornachary Sons v. M. R. Krishnamachary
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 4. the learned munsif held that although delay was not an adequate ground to refuse amendment, yet at the fag end of the hearing of the suits, when both parties had led copious evidence with regard to their respective possession, it was not expedient to allow amendment of the written statements permitting defendant 1 to raise the plea of adverse possession because, such a plea in any case would be available to it if the plaintiffs failed to prove their possession within 12 years prior to the institution of the suits. it is the settled principle of law that amendment of pleadingsshould be allowed when two conditions are satisfied, namely; order 8,..........suit shall be able to make a counter-claim against the plaintiff which shall be treated as a cross suit, rule 6-a was inserted in order 8 by the c.p.c. (amendment) act no. 104 of 1976. one of the essential features of rule 6-a is that the counter-claim shall be preferred by the defendant before he has delivered his defence or before the time limited for delivering his defence has expired. the expression, 'before the defendant has delivered his defence or before the time limited for delivering his defence has expired' occurring in sub-rule (1) of rule 6-a shall mean, 'before the defendant has filed his written statement or before the time limited for submission of his written statement to the plaintiffs suit has expired'. the above construction is in consonance with the provisions in.....
Judgment:

K.P. MOHAPATRA, J.

1. These Civil Revisions are directed against the common order passed by the learned Munsif, Second Court, Cuttack refusing amendment of the written statements under Order 6, Rule 17 of the C.P.C. (for short the 'Code'). Defendant 1 is the petitioner.

2. The facts relevant for the purpose of consideration of the points which arise in the Civil Revisions may be briefly stated. Title Suit No. 212 of 77 and Title Suit No. 213 of 77 between the same parties, though in respect of different lands, were heard analogously. According to the case of the plaintiffs, their predecessors-in-interest acquired the suit lands in the years 1945 and 1946 by way of permanent lease and since then they have been inpossession thereof on payment of rent. Defendant 1 with the help of other defendants made preparation to reap the standing paddy crops and so the suits were instituted to restrain defendant 1 permanently from interfering with the plaintiffs' possession thereof. Defendant 1 in the written statements has set up the case that one Ratha Behera acquired the suit lands on the basis of a deed of permanent lease executed on 14-1-1940 by the Zamindar, Chaudhury Bishnu Krushna Das and remained in possession thereof on payment of rent. After his death in the year 1952, his heirs, while in possession thereof, sold the same in favour of Ratnakar Mohapatra by a registered sale deed dt. 17-12-63. After abolition of the estates, Bihari Mohapatra, son of Ratnakar, was recognised as the lessee and the suit lands were settled on him. Bihari Mohapatra conveyed the suit lands in favour of defendant 1 deity through Marfatdar Laxmidhar Jena by a registered deed of gift dt. 15-12-76 accompanied by delivery of possession, whereafter defendant 1 has been in possession thereof on payment of rent.

3. The parties went up to the trial and closed their evidence on 29-9-81 and the case was posted to 20-10-81 for argument. On 22-12-81 defendant 1 filed a petition under Order 6, Rule 17 of the Code for amendment of the Written Statements. On 7-1-82 it filed two petitions, one for correction of the original petition and the other under Order 6, Rule 17 of the Code for further amendment of the written statements. By the proposed amendment, defendant 1, raised two further pleas, namely (i) it has acquired title in respect of the suit lands by adverse possession in case its antecedent title is found to be defective and (ii) it preferred a counter-claim for declaration of its own title in respect of the suit lands valued at Rs. 2000/-. The plaintiffs opposed the proposed amendment mainly on the grounds that at the fag end of the hearing of the suits, altogether different pleas could not be allowed to be raised and further the counterclaim could not be entertained long after filing of the written statements as envisaged in 0. 8, Rule 6-A of the Code.

4. The learned Munsif held that although delay was not an adequate ground to refuse amendment, yet at the fag end of the hearing of the suits, when both parties had led copious evidence with regard to their respective possession, it was not expedient to allow amendment of the written statements permitting defendant 1 to raise the plea of adverse possession because, such a plea in any case would be available to it if the plaintiffs failed to prove their possession within 12 years prior to the institution of the suits. With regard to the counter-claim he relied upon the provisions of Order 8, Rule 6-A( 1) of the Code and held that after filing of the written statements it was impermissible according to law to allow defendant 1 to amend the written statements by preferring a counter-claim. Accordingly he rejected the petitions.

5. Learned counsel appearing for the petitioner contended that for final and effective adjudication of the disputes between the parties relating to the suit lands, it was necessary that the proposed amendment should have been allowed. On the other hand, learned counsel appearing for the opposite parties, urged that the proposed amendment of the written statements raising a fresh plea of adverse possession after close of the evidence of both parties could not be permitted and further Order 8, Rule 6-A of the Code bars preferring a counter-claim after filing of the written statements. In view of the rival contentions, only two points arise for consideration, namely.--

(i) Whether at a belated stage defendant No. 1 could be permitted to amend the written statements raising a plea of adverse possession, and

(ii) Whether Order 8, Rule 6-A of the Code is a bar for preferring a counter-claim long after filing of the written statements.

6. In the written statements defendant 1 has categorically pleaded that the suit lands have been in its possession ever since 1940 through Marfatdars. By the proposed amendment it is intended to take an alternative plea of adverse possession in case the deeds of title are found to be defective. While considering this point the learned Munsif found that the alternative plea of adverse possession was available to defendant 1 to be taken while filing its written statements. But on account of delay he did not permit the aforesaid plea to be taken by allowing the proposed amendment. It is indeed correct that defendant 1 could have taken the alternative plea of adverse possession while filing the written statements. Although such a plea was not taken, the written statements were sought to be amended at the close of hearing of the suits. It is the settled principle of law that amendment of pleadingsshould be allowed when two conditions are satisfied, namely; (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. An alternative and inconsistent plea can be taken in the written statement provided the character of the defence case is not completely changed. The prayer for amendment of the written statement should not be considered with the same rigour and strictness as prayer for amendment of the plaint. Delay by itself is also not a sufficient ground to disallow amendment of pleadings (54 Cut LJ 375 : (AIR 1983 Ori 77), Bhaskar Chandra Behera V. Ranital Rice Mill Co. Considered in the light of the aforesaid proposition, it is patent that defendant 1 who has taken the specific plea of possession of the suit land through Marfatdars and their predecessors-in-interest since 1940 could also have taken the alternative plea of adverse possession in the original written statements. Such a plea would not haye been illegal. Both the parties have led copious evidence with regard to possession. Even if the alternative plea of adverse possession is introduced in the written statements by way of amendment, the parties may not adduce further evidence on the question of possession and even if they do so, there shall be no further complication. The question of delay in bringing the proposed amendment could be solved by saddling defendant 1 with costs. In the aforesaid view of the matter, 1 do not find any justification for refusal of this part of the amendment of the written statements which relates to the alternative plea of adverse possession proposed to be taken by defendant 1 in respect of the suit lands. Therefore, para 16(a) of the petition for amendment dated 7-1-82 shall be inserted in the original written statements of defendant 1 on payment of cost of Rs. 750/- to the plaintiffs. Consequent upon the amendments, the parties should also be permitted to adduce further evidence, if any.

7. The next point relates to the counterclaim sought to be introduced by way of amendment by defendant 1 for declaration of title in respect of the suit lands. According to the learned counsel for the opposite parties, a counter-claim of this nature cannot be entertained long after filing of the written statements as envisaged in Order 8, Rule 6-A of the Code. Rule 6-A is quoted below : --

'6-A. Counter-claim by defendant.-- (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant hasdelivered his defence or before the time limited for delivering his defence has expired, whethersuch counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

In Rule 6 of Order 8 there is provision enabling the defendant to claim a set off against the plaintiff's demand for recovery of money. But there was no provision in the Code enabling the defendant to make a counter-claim. In order that a defendant in a suit shall be able to make a counter-claim against the plaintiff which shall be treated as a cross suit, Rule 6-A was inserted in Order 8 by the C.P.C. (Amendment) Act No. 104 of 1976. One of the essential features of Rule 6-A is that the counter-claim shall be preferred by the defendant before he has delivered his defence or before the time limited for delivering his defence has expired. The expression, 'before the defendant has delivered his defence or before the time limited for delivering his defence has expired' occurring in sub-rule (1) of Rule 6-A shall mean, 'before the defendant has filed his written statement or before the time limited for submission of his written statement to the plaintiffs suit has expired'. The above construction is in consonance with the provisions in Sub-rules (2), (3) and (4) of Rule 6-A according to which, the counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claimand on the counter-claim; the plaintiff shall be at liberty to file written statement in answer to the counter-claim of the defendant within such period as may be fixed, because, so far as the counter-claim is concerned he is considered as the defendant and the counter-claimant as the plaintiff. Therefore, in consideration of the provisions of Rule 6A of Order 8 it is crystal clear that a counter-claim by the defendant can be made while filing the written statement or before the time limited for submission of the written statement has expired and in no case at a later stage. While making the above provisions, the legislative intention seems to be that the plaintiff's claim and the defendant's counter-claim should be tried by the Court together so that it will be in a position to appreciate the respective merits of the claim of the plaintiff and the counter-claim of the defendant. If the counter-claim is made by the defendant at a later stage, such as, after the evidence of the parties has been closed, it would necessitate reopening of the suit by allowing the defendant to lead evidence to prove his counter-claim and also giving opportunity to the plaintiff to disprove such claim. Such a dilatory process could not be the mandate of the legislature. On the other hand, the intention is in keeping with the principle of avoidance of delay in trial of suits, for, delay defeats justice. In this connection it would not be out of place to make reference to a few decisions. In AIR 1977 Cal 312, M/s. Daga Films v. M/s. Lotus Production, the counter-claim was made by the defendant in the written statement. In AIR 1979 All 12, Vishwanath Lohia v. Allahabad Bank, the defendant made the counter-claim in the written statement. In 50 Cut LT 578 : (AIR 1980 Ori 193), Bansidhar Mohanty v. United Bank of India, the counter-claim was made in the written statement. In AIR 1983 Mad 291, T.K.V.S. Vidyapoornachary Sons v. M. R. Krishnamachary, also the counter-claim was made in the written statement. The counterclaim by the defendants in all these cases was made under the provisions of Order 8, Rule 6A of the Code. I am, therefore, of the firm view that a counter-claim by the defendant under Order 8, Rule 6A of the Code must have to be made at the time of filing the written statement or before the time limited for submission of the written statement has expired.

8. In the present case, defendant No. 1 did not make the counter-claim, if any, while filing the written statement in both the suits. As already referred to earlier, it preferred the counter-claim by way of amending the written statements long thereafter, as a matter of fact, after evidence of both sides was closed and the suits were posted for hearing argument. Order 8, Rule 6A of the Code clearly barred defendant 1 from preferring the counter-claim long after filing written statements and after close of evidence in the suits. Therefore, amendment of written statements for inclusion, of the counter-claim cannot be allowed and in this respect the learned Munsif has taken a correct view.

9. In the ultimate analysis, defendant 1 is permitted to amend its written statements in both the suits by adding para 16(a) of the petition dt. 7-1-82 subject to payment of cost of Rs. 75/- to the plaintiffs. It cannot be allowed to prefer counter-claim in contravention of Order 8, Rule 6A of the Code.

10. For the reasons stated above, the Civil Revisions are allowed in part to the extent referred to above.


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