Case Note & Summary
The petitioner, Sheshrao Sable, was the original defendant in Regular Civil Suit No. 18 of 2004 filed by respondent No. 1, Ganesh Sable, for declaration and perpetual injunction. The trial court had granted a temporary injunction in favor of the plaintiff. The petitioner alleged that under the garb of that order, the plaintiff dispossessed him. He sought leave to amend his written statement to incorporate a counter claim for possession based on these subsequent events. The trial court rejected the application, relying on the judgment of this Court in Ganu Kisna Buradkar v. Manik Kisna Buradkar, 2003 (3) Mh.L.J. 218. The petitioner challenged this order in the High Court. The High Court found that the trial court's reliance on Ganu Kisna Buradkar was erroneous. The court noted that the counter claim was based on a cause of action that had accrued after the filing of the suit, and such a counter claim could be entertained. The court relied on the Supreme Court judgments in Gurbachan Singh v. Bhag Singh, (1996) 1 SCC 770, and Shanti Ra Das Dewanjee v. Dinesh Chandra Day, (1997) 8 SCC 174, as well as the Karnataka High Court judgment in Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni, 2001 (3) Civil L.J. 910. The High Court allowed the writ petition, set aside the impugned order dated 13.2.2006, and directed the trial court to permit the petitioner to amend the written statement and incorporate the counter claim.
Headnote
A) Civil Procedure - Amendment of Written Statement - Counter Claim - Subsequent Events - Order 6 Rule 17, Order 8 Rule 6A Code of Civil Procedure, 1908 - The petitioner-defendant sought to amend his written statement to incorporate a counter claim for possession based on alleged dispossession after the suit was filed. The trial court rejected the application relying on Ganu Kisna Buradkar v. Manik Kisna Buradkar. The High Court held that the trial court's reliance was erroneous and that a counter claim based on a subsequent cause of action can be entertained. The court allowed the amendment, setting aside the impugned order. (Paras 2-5)
Issue of Consideration
Whether a defendant can be permitted to amend the written statement to incorporate a counter claim based on a cause of action that has accrued after the filing of the suit.
Final Decision
Writ petition allowed. Impugned order dated 13.2.2006 set aside. Trial court directed to permit the petitioner to amend the written statement and incorporate the counter claim. Rule made absolute with no order as to costs.
Law Points
- Amendment of written statement
- Counter claim
- Subsequent events
- Cause of action
- Order 6 Rule 17 CPC
- Order 8 Rule 6A CPC
Case Details
2006 LawText (BOM) (09) 137
Writ Petition No. 1033 of 2006
Shri A.S. Chandurkar for petitioner, Shri Rahul Tajne for respondent No.1
Sheshrao s/o Bhaurao Sable
Ganesh s/o Mahadeorao Sable & 2 Ors.
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Nature of Litigation
Civil writ petition challenging order refusing amendment of written statement to incorporate counter claim.
Remedy Sought
Petitioner sought to amend written statement to incorporate counter claim for possession based on alleged dispossession after suit was filed.
Filing Reason
Trial court rejected amendment application relying on Ganu Kisna Buradkar v. Manik Kisna Buradkar.
Previous Decisions
Trial court passed order dated 13.2.2006 below Exh. 77 in Regular Civil Suit No. 18 of 2004 refusing amendment.
Issues
Whether a counter claim based on a cause of action accruing after the filing of the suit can be entertained under Order 8 Rule 6A CPC.
Submissions/Arguments
Petitioner argued that the trial court erroneously relied on Ganu Kisna Buradkar and that a counter claim for possession based on subsequent events can be entertained.
Respondent's arguments not mentioned in the judgment.
Ratio Decidendi
A counter claim based on a cause of action that has accrued after the filing of the suit can be entertained under Order 8 Rule 6A of the Code of Civil Procedure, 1908. The trial court's reliance on Ganu Kisna Buradkar was erroneous.
Judgment Excerpts
The petitioner – original defendant has questioned the order dated 13.2.2006 passed below Exh. 77 in Regular Civil Suit No. 18 of 2004 passed by 3rd Joint Civil Judge, Junior Division, Akot, refusing him permission to amend written statement with a view to incorporate counter claim.
By relying upon the judgment of this Court in the case of Ganu Kisna Buradkar vs. Manik Kisna Buradkar & Anr., reported at 2003 (3) Mh.L.J. 218, the trial Court has rejected that prayer.
Shri Chandurkar, learned counsel for the petitioner has contended that the reliance upon the judgment of this Court is erroneous and he further states that the counter claim for possession can also be entertained and he further states that when cause of action has accrued subsequently, the counter claim could have been entertained.
Procedural History
The petitioner filed a writ petition in the High Court challenging the order dated 13.2.2006 passed by the 3rd Joint Civil Judge, Junior Division, Akot, in Regular Civil Suit No. 18 of 2004, which refused the petitioner's application to amend the written statement to incorporate a counter claim. The High Court heard the matter and allowed the petition on 13.9.2006.
Acts & Sections
- Code of Civil Procedure, 1908: Order 6 Rule 17, Order 8 Rule 6A
