Case Note & Summary
The petitioner, Radhakisan Agrawal, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 18.11.2010 passed by the learned Civil Judge, Senior Division, Nagpur, which allowed an application for amendment of the counter claim filed by respondent nos. 3, 5, and 6. The suit, originally filed in 1986 as Regular Civil Suit No.521/1986, was for declaration and possession of an area of 227 sq.ft. leased out by the plaintiff to the defendants. The suit was later transferred to the Court of Civil Judge, Junior Division, Amgaon and renumbered as Regular Civil Suit No.37/1993. The written statement, which included a counter claim, was originally filed on 02.04.1987 and had been amended on four prior occasions (25.02.1994, 12.08.1999, 20.09.2005, and 19.01.2007). The impugned amendment sought to modify prayer clause (2) of the counter claim to include relief for possession of an additional area of 10 ft. x 10 ft. The petitioner contended that the amendment was belated, filed after 24 years, and would change the nature of the suit. The respondents argued that the amendment was necessary to clarify the relief and did not introduce a new cause of action. The Court, after considering the submissions, held that the amendment did not change the nature of the suit and no prejudice was caused to the plaintiff that could not be compensated by costs. The Court noted that the trial court had exercised its discretion properly and the impugned order did not suffer from any infirmity. The writ petition was dismissed, and the amendment was allowed subject to payment of costs of Rs. 500/- to the petitioner.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 of the Code of Civil Procedure, 1908 - Amendment of Counter Claim - The petitioner challenged the order allowing amendment of the counter claim in a suit for declaration and possession of 227 sq.ft. area. The amendment sought to include relief for possession of an additional area of 10 ft. x 10 ft. The Court held that the amendment did not change the nature of the suit and no prejudice was caused to the plaintiff as the amendment could be compensated by costs. The petition was dismissed. (Paras 1-8) B) Constitutional Law - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - Interference with Interlocutory Orders - The Court held that the impugned order allowing amendment of the counter claim did not suffer from any jurisdictional error or perversity warranting interference under writ jurisdiction. The discretion exercised by the trial court was proper and the petition was dismissed. (Paras 1-8)
Issue of Consideration
Whether the amendment of the counter claim after 24 years from the filing of the written statement should be allowed, and whether the impugned order suffers from any infirmity warranting interference under Articles 226 and 227 of the Constitution of India.
Final Decision
The writ petition is dismissed. The impugned order dated 18.11.2010 is upheld. The amendment is allowed subject to payment of costs of Rs. 500/- to the petitioner.
Law Points
- Amendment of pleadings
- Counter claim amendment
- Prejudice test
- Delay in amendment
- Change of nature of suit
- Order VI Rule 17 CPC
