Case Note & Summary
The petitioner, Shri Girish Manohar Mokashi, was the original respondent No.2 in a suit filed by the Dombivli Nagari Sahakari Bank Ltd in 1995. The petitioner filed his written statement on 18 December 2009. On 24 March 2011, the bank filed a pursis seeking withdrawal of the suit. In response, the petitioner filed an amendment application on 25 August 2011 to incorporate a counter claim based on the events and pleadings already on record, including an alleged payment of Rs.1,01,300 on 11 June 1982. The trial court allowed the amendment on 20 December 2012, and the petitioner carried out the amendment on 3 January 2014. The bank appealed, and the Maharashtra State Cooperative Appellate Court allowed the appeal on 5 September 2013, rejecting the amendment application. The petitioner challenged this order in the High Court. During the pendency of the writ petition, the bank's suit was dismissed for non-prosecution on 6 December 2013. The High Court noted that the bank's intention to withdraw the suit and its subsequent dismissal for non-prosecution supported the petitioner's case. The court held that the amendment was necessary to decide the real controversy and that the defendant's right to raise a counter claim cannot be defeated by the plaintiff's withdrawal. The High Court set aside the appellate court's order and restored the trial court's order allowing the amendment.
Headnote
A) Civil Procedure - Amendment of Pleadings - Counter Claim - Order VI Rule 17, Order VIII Rule 6A, Code of Civil Procedure, 1908 - The petitioner-defendant sought to amend his written statement to include a counter claim after the plaintiff-bank filed a pursis for withdrawal of the suit. The trial court allowed the amendment, but the appellate court reversed it. The High Court held that the amendment was necessary to adjudicate the real controversy, especially since the bank's claim was later dismissed for non-prosecution. The court emphasized that the defendant's right to raise a counter claim cannot be defeated by the plaintiff's unilateral withdrawal. (Paras 1-4)
Issue of Consideration
Whether the appellate court was justified in rejecting the amendment application for counter claim filed by the defendant after the plaintiff bank sought to withdraw the suit.
Final Decision
The High Court allowed the writ petition, set aside the appellate court's order dated 5 September 2013, and restored the trial court's order dated 20 December 2012 allowing the amendment application.
Law Points
- Amendment of pleadings
- Counter claim
- Withdrawal of suit
- Order VI Rule 17 CPC
- Section 96 CPC
- Cooperative Societies Act
Case Details
2015 LawText (BOM) (02) 49
Writ Petition No.10523 of 2013
Ms. Smita G. Mane for petitioner, Mr. Ashutosh R. Gole for respondent
Shri Girish Manohar Mokashi
The Dombivli Nagari Sahakari Bank Ltd
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Nature of Litigation
Writ petition challenging the order of the Maharashtra State Cooperative Appellate Court rejecting the petitioner's amendment application for counter claim.
Remedy Sought
The petitioner sought to set aside the appellate court's order and restore the trial court's order allowing the amendment.
Filing Reason
The petitioner's amendment application for counter claim was rejected by the appellate court.
Previous Decisions
The trial court allowed the amendment on 20 December 2012; the appellate court reversed it on 5 September 2013.
Issues
Whether the appellate court erred in rejecting the amendment application for counter claim.
Whether the defendant's right to raise a counter claim is affected by the plaintiff's withdrawal of the suit.
Submissions/Arguments
The petitioner argued that the amendment was necessary to bring the counter claim based on the events and pleadings already on record, and the bank's withdrawal of the suit supported the need for amendment.
The respondent bank argued against the amendment, but the High Court noted that the bank's claim was later dismissed for non-prosecution.
Ratio Decidendi
The defendant's right to raise a counter claim cannot be defeated by the plaintiff's unilateral withdrawal of the suit. The amendment was necessary to adjudicate the real controversy, especially when the bank's claim was later dismissed for non-prosecution.
Judgment Excerpts
The claim was raised and the defence so filed at an appropriate time could have been decided in accordance with law, which was also in the background of payment of Rs.1,01,300/ on 11 June, 1982.
The already filed written statement, in no way debars the petitioner to continue with the defences and the counter claims so raised, in the situation that the bank itself decided to withdraw the suit.
Procedural History
Suit filed by bank in 1995. Petitioner filed written statement on 18 December 2009. Bank filed pursis for withdrawal on 24 March 2011. Petitioner filed amendment application on 25 August 2011. Trial court allowed amendment on 20 December 2012. Petitioner carried out amendment on 3 January 2014. Bank appealed on 18 February 2013. Appellate court allowed appeal and rejected amendment on 5 September 2013. Petitioner filed writ petition. During pendency, bank's suit dismissed for non-prosecution on 6 December 2013.
Acts & Sections
- Code of Civil Procedure, 1908: Order VI Rule 17, Order VIII Rule 6A
