Case Note & Summary
The petitioner, Mrs. Ivy Muriet Fonseca, was the defendant in Special Civil Suit No. 85/2001/C filed by the respondent, Mr. Porus Adi Dotor, seeking specific performance of an agreement of sale. The petitioner filed an application for amendment of her written statement dated 25.11.2002, seeking to introduce a counterclaim for specific performance of the same agreement. The trial court partly allowed the amendment by order dated 20.12.2003, but rejected the counterclaim portion. The petitioner challenged that rejection in Writ Petition No.125/2004, which was allowed by this Court on 17.6.2004, directing the trial court to reconsider the amendment application. The trial court then passed the impugned order dated 19.8.2004, again rejecting the counterclaim on the ground that it was barred by limitation and that Order VIII Rule 6A CPC does not permit a counterclaim that arises after the suit. The petitioner filed the present writ petition challenging that order. The High Court held that Order VIII Rule 6A CPC does not bar a counterclaim that arises after the filing of the suit; it only requires that the counterclaim be one which the defendant could have filed at the time of filing the written statement. Since the counterclaim arose before the written statement was filed, it was permissible. The court also held that the counterclaim was not barred by limitation as it was filed within three years of the alleged refusal to perform, under Article 113 of the Limitation Act, 1963. The court allowed the writ petition, set aside the trial court's order, and directed that the amendment be allowed in its entirety.
Headnote
A) Civil Procedure - Amendment of Pleadings - Counterclaim - Order VIII Rule 6A, Order VI Rule 17, Code of Civil Procedure, 1908 - The court considered whether a counterclaim arising after the suit but before filing of written statement can be introduced by amendment. Held that Order VIII Rule 6A does not bar a counterclaim that arises after the suit, and the amendment can be allowed under Order VI Rule 17 if necessary for determining the real controversy. The court allowed the amendment, setting aside the trial court's order which had rejected part of the amendment. (Paras 2-10) B) Limitation - Counterclaim - Article 113, Limitation Act, 1963 - The court held that the counterclaim for specific performance of an agreement of sale is governed by Article 113 of the Limitation Act, which provides a period of three years from the date when the right to sue accrues. Since the counterclaim was filed within three years of the alleged refusal to perform, it was not barred by limitation. (Paras 11-12)
Issue of Consideration
Whether a counterclaim which arises after the filing of the suit but before the defendant has filed his written statement can be introduced by way of amendment of the written statement, and whether such amendment is barred by limitation or by the provisions of Order VIII Rule 6A of the Code of Civil Procedure, 1908.
Final Decision
Writ petition allowed. Impugned order dated 19.8.2004 set aside. The trial court is directed to allow the amendment application in its entirety, including the counterclaim.
Law Points
- Amendment of pleadings
- Counterclaim
- Order VIII Rule 6A CPC
- Order VI Rule 17 CPC
- Specific Relief Act
- 1963
