AFR

Court No. ­ 1
Case :­ CIVIL REVISION No. ­ 392 of 2015
Revisionist :­ M/S Narendra Road Lines Pvt. Ltd.
Opposite Party :­ Rashtriya Ispat Nigam Limited
Counsel for Revisionist :­ Anil Kumar Pandey

Hon'ble Surya Prakash Kesarwani,J.

1. Heard Shri Anil Kumar Pandey, learned counsel for the

defendant­revisionist.

2. Learned counsel for the defendant­revisionist submits that

his application has been rejected by the impugned order dated
10.9.2015 by the court of Additional District Judge, Court
No.18, Agra on the ground that application for counter claim
under the facts and circumstances of the case, is barred by Order
8 Rule 6­A of C.P.C. and the said application was belatedly filed
after five years of filing of the written statement. He submits
that in view of the law settled by the Hon'ble Supreme Court in
the case of Baldev Singh and others vs. Manohar Singh and
another, 2006 (6) SCC 498 (Paras 8 and 12), the amendment
application filed by the defendant­revisionist under Order 6 Rule
17 read with Order 8 Rule 6­A of C.P.C. should have been
liberally considered and it should have been allowed. He further
submits that Order 8 Rule 6­A of C.P.C. provides for counter­
claim to be filed before delivery of defence, has been
misinterpreted by the trial court by observing that the counter­
claim should have been filed before filing of the written
statement or before framing of the issues. He further submits
that the said finding of the trial court is unsustainable in view of
the law laid down by Hon'ble Apex Court in the case of Rohit
 2

Singh and others vs. State of Bihar (now state of Jharkhand)

and others, 2006 (12) SCC 734 as under:

“18. After this, the witnesses of the plaintiff were recalled and
permitted to be cross­examined by these defendants. That was on
5.10.1996. Again the witnesses for defendants 1 and 2, were
recalled and they were permitted to be cross­ examined on behalf of
these defendants. The evidence on the side of defendants 3 to 17
was let in. It commenced on 24.2.1997 and was closed on
30.1.1997. Thereafter arguments were heard again and the
arguments on the side of the defendants including that of
defendants 3 to 17 were concluded on 4.3.1997. The suit was
adjourned for arguments on the side of the plaintiff. On 5.3.1997,
the suit was dismissed for default of the plaintiff. It was then
restored on 29.5.1998. It was thereafter on 5.6.1998, that
defendants 3 to 17 filed an application for amending the written
statement. The amendment was allowed on 20.7.1998. There was
no order treating the amended written statement as a counter­
claim or directing either the plaintiff or defendants 1 and 2 to file a
written statement or an answer thereto. Defendants 3 to 17 had
questioned the pecuniary jurisdiction of the trial court in their
written statement. That plea was permitted to be withdrawn on
4.2.1999. It is clear that after the evidence was closed, there was
no occasion for impleading the interveners. Even assuming that
they were properly impleaded, after they had filed their written
statement, the suit had gone for further trial and further evidence
including that of the interveners had been taken, the evidence again
closed and even arguments on the side of the interveners had been
concluded. The suit itself was dismissed for default only because on
behalf of the plaintiff there was a failure to address arguments. But
the suit was subsequently restored. At that stage no counter­claim
could be entertained at the instance of the interveners. A counter­
 3

claim, no doubt, could be filed even after the written

statement is filed, but that does not mean that a counter­
claim can be raised after issues are framed and the evidence is
closed. Therefore, the entertaining of the so called counter­
claim of defendants 3 to 17 by the trial court, after the
framing of issues for trial, was clearly illegal and without
jurisdiction. On that short ground the counter­ claim so
called, filed by defendants 3 to 17 has to be held to be not
maintainable.

21. Normally, a counter­claim, though based on a different cause of

action than the one put in suit by the plaintiff could be made. But,
it appears to us that a counter­ claim has necessarily to be directed
against the plaintiff in the suit, though incidentally or along with
it, it may also claim relief against co­defendants in the suit. But a
counter­claim directed solely against the co­defendants cannot be
maintained. By filing a counter­claim the litigation cannot be
converted into some sort of an inter­pleader suit. Here,
defendants 3 to 17 had no claim as against the plaintiff
except that they were denying the right put forward by the
plaintiff and the validity of the document relied on by the
plaintiff and were asserting a right in themselves. They had
no case even that the plaintiff was trying to interfere with
their claimed possession. Their whole case was directed against
defendants 1 and 2 in the suit and they were trying to put forward
a claim as against the State and were challenging the claim of the
State that the land involved was a notified forest in the possession
of the State. Such a counter­claim, in our view, should not have
been entertained by the trial court.

22. The observations of this Court in Ramesh Chand Ardawatiya

(Supra) that:

"28.Looking to the scheme of Order 8 as amended by Act 104

 4

of 1976, we are of the opinion, that there are three modes of

pleading or setting up a counter­claim in a civil suit.
Firstly, the written statement filed under Rule 1 may itself
contain a counter­claim which in the light of Rule 1 read with
Rule 6­A would be a counterclaim against the claim of the
plaintiff preferred in exercise of legal right conferred by Rule 6­
A. Secondly, a counter­claim may be preferred by way of
amendment incorporated subject to the leave of the court in a
written statement already filed. Thirdly, a counter­ claim may
be filed by way of a subsequent pleading under Rule 9."

are of no avail to defendants 3 to 17 on the facts and in the

circumstances of this case. In the reported decision, this Court
did not have to consider whether a counter­claim can be filed
after the trial is concluded and whether it could be solely
directed against a co­defendant. The Court was also not
dealing with an inchoate counter­claim in that case.

3. Further submission of the learned counsel for the

defendant­revisionist is that the agreement between the plaintiff
and the respondent contains an arbitration clause, and as such,
plaint itself was liable to be rejected under Order 7 Rule 11 of
C.P.C. The application of the defendant­revisionist under order
7 rule 11 of C.P.C. was wrongly rejected by the trial court vide
order dated 28.7.2010. He further submits that after rejection of
his application, the defendant­revisionist filed an application
under Order 6 Rule 17 of C.P.C. read with Order 8 Rule 6­A of
C.P.C., and thus, the application cannot be said to be a belated
one.

4. I have carefully considered the submissions taken by the

learned counsel for the defendant­revisionist and perused the
record.
 5

5. Briefly stated the facts of the present case are that the
defendant­revisionist is a transporter and has entered into an
agreement with the plaintiff for transportation of goods. In para
22 of the written statement, it is stated that the goods entrusted
to the defendant as a carrier by the plaintiff could not be
delivered as instructed, on account of criminal act of certain
unknown criminals and a First Information Report was lodged
on 26.12.2002 with the Police Station­Sadar Palwal Haryana. It
appears that the plaintiff insisted the defendant to pay the cost
of goods in terms of the agreement, and thereupon, the
defendant­revisionist send a letter dated 11.2.2003 to the
plaintiff intimating that the goods have lost and are not
traceable, and as such, the plaintiff may recover the costs of
goods from his transportation bills. It has been observed by the
court below in the order dated 28.7.2010 that the said stand
taken by the defendant­revisionist has been accepted in clause 9
of the written statement filed on 13.4.2006. The issues were
framed on 1.8.2006.

6. In his letter dated 11.2.2003, as undisputedly observed in

the order dated 28.7.2010; the defendant­revisionist under took
to pay the cost of goods but insisted that the same be deducted
from his transportation bills and his bank guarantee be not
encashed. He further stated that he is ready to pay every rupee
of the plaintiff. On these facts, the application of the defendant­
revisionist under Order 7 Rule 11 of C.P.C. was rejected by the
court below vide order dated 28.7.2010 and the Original Suit
No.58 of 2006 filed by the plaintiff was directed to be listed for
final hearing, which order has been accepted by the defendant­
 6

revisionist.

7. Thereafter on 21.11.2011, the defendant­revisionist filed

an application under Order 6 Rule 17 of C.P.C. for setting up the
counter­claim. The only reasons given in the said application for
filing the said application was that after knowing the correct
legal position he send a notice dated 26.7.2011 to the plaintiff
but the plaintiff instead of complying with the said notice, gave
a wrong reply on 2.8.2011, and therefore, the counter­claim in
the suit is being filed.

8. The aforesaid amendment application under Order 6 Rule

17 of C.P.C. dated 21.11.2011 was rejected by the court below
by the impugned order dated 10.9.2015. Aggrieved with this
order, the defendant­revisionist has filed the present revision.

9. By the impugned order, the application of the defendant­

revisionist under Order 6 Rule of 17 read with Order 8 Rule 6­A
of C.P.C. has been rejected on the ground that the counter­claim
has been filed by means of amendment after five years of filing
of the written statement and framing of the issues and the
application is barred by under Order 8 Rule 6­A of C.P.C.
Findings have further been recorded that the defendant­
revisionist has not disclosed sufficient cause for the delay in
filing the application and that the allegations sought to be added
by amendment were well within the knowledge of the
defendant­revisionist at the time of filing of the written
statement and if the amendment application is allowed, it shall
cause serious prejudice to the plaintiff. Thus, the application
was rejected as not maintainable.

10. The defendant­revisionist has not disputed the facts as

 7

stated in his letter dated 11.2.2003. The only reasons for filing
the amendment application at a belated stage for setting up
counter­claim as stated by the defendant­revisionist is that after
knowing the correct legal position, he send a notice dated
26.7.2011 to the plaintiff, and thereafter, the counter­claim has
been filed.

11. Before I proceed to examine further the facts on the

strength of the relevant provisions and two judgements relied by
the defendant­revisionist, it would be appropriate to reproduce
the provisions of Order 6 Rule 17 and Order 8 Rule 6­A of
C.P.C., which reads as under:

Order 6 Rule 17: Amendment of pleadings.­ The Court may at

any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after

the trial has commenced, unless the Court comes to the conclusion
that in spite of due diligence, the party could not have raised the
matter before the commencement of trial.

Order 8 Rule 6­A:Counter­claim by defendant.­(1) A defendant in

a suit may, in addition to his right of pleading a set­off under rule 6,
set up, by way of counter­claim 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 has delivered his defence or before the
time limited for delivering his defence has expired, whether such
counter­claim is in the nature of a claim for damages or not:

Provided that such counter­claim shall not exceed the pecuniary

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limits of the jurisdiction of the Court.

(2) Such counter­claim shall have the same effect as a cross­suit so as

to enable the Court to pronounce a final judgment in the same suit,
both on the original claim and on the counter­claim.

(3) The plaintiff shall be at liberty to file a written statement in

answer to the counter claim of the defendant within such period as
may be fixed by the Court.

(4) The counter­claim shall b e treated as a plaint and governed by

the rules applicable to plaints.

12. It is true that courts should be liberal in granting the

prayer for amending of pleadings unless serous injustice or
irreparable loss is caused to the other side as held by Hon'ble
Supreme Court in the case of Baldev Singh (supra). The first
part of Order 6 Rule 17 of the C.P.C. provides that the court
may at any stage of the proceedings allow either party to amend
his pleadings subject to the condition in the second part that
such amendment shall be made for the purpose of determining
the real controversies raised between the parties and the
amendment of pleadings may be allowed in such manner and on
such terms as may appear to the Court to be just and proper.

13. Order 8 Rule 6­A permits the defendant in a suit, in

addition to his right of pleading a set­off under Rule 6, set­up,
byway of counter­claim 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 has delivered his
defence or before the time limited for delivering his defence
has expired, whether such counter­claim is in the nature of a
 9

claim for damages or not and such counter­claim shall have the
same effect as a cross­suit so as to enable the Court to
pronounce a final judgement in the same suit, both on the
original claim and on the counter­claim.

14. In the case of Rohit Singh (supra) the Hon'ble Supreme

Court observed that no doubt, a counter­claim may be filed even
after the written statement is filed, but that does not mean that
a counter­claim can be raised after issues are framed and the
evidence is closed. The Hon'ble Supreme Court further observed
that entertaining of the so called counter­claim of defendants 3
to 17 by the trial court, after the framing of issues for trial,
was clearly illegal and without jurisdiction. In the present set
of facts, not only the application for amendment and counter­
claim was filed by the defendant­revisionist after five years of
framing of the issues but also only explanation give for such a
long delay was that after he knew the correct legal position, a
notice was given and the applications were filed. Thus, even no
proper explanation was offered for such a long delay in filing
the amendment application and for setting­up counter­claim.
The argument, which has been raised before this Court that the
suit was barred by arbitration clause is also wholly misconceived
in view of the admitted facts, as noted above, and also in view
of the fact that the application for rejection of the plaint on the
same set of facts and ground was rejected by the trial court vide
order dated 28.7.2010, which was accepted by the defendant­
revisionist. The defendant­revisionist, although denied his
liability in the written statement to pay the amount claimed by
the plaintiff­respondent, but no counter­claim was set­up.
 10

15. In the case of Ramesh Chand Ardawatiya vs Anil

Panjwani, 2003 (VII) SCC 350, the Hon'ble Supreme Court as
held as under:

24. Order 8 CPC deals with ''written statement, set­off and counter­
claim''. We would like to state, by way of clarification, that the
provisions of CPC which are being considered herein are as amended
by Act 104 of 1976 only, (excluding from consideration the
amendments incorporated by Act 46 of 1999 with effect from
1.7.2002). According to Rule 1 of Order 8 the defendant shall, at or
before the first hearing or within such time as the Court may permit,
present a Written Statement of his defence. Under Rule 2 the defendant
must raise by his pleadings inter alia all matters which show the suit
not to be maintainable and all such grounds of defence as, if not
raised, would be likely to take the opposite party by surprise. Under
Rule 6 the defendant may at the first hearing of the suit, but not
afterwards unless permitted by the Court, present a written statement
containing the particulars of the debt sought to be set­off subject to
certain limitations. Rules 6A, 6B and 6C (introduced by the
Amendment Act, 1976) read as under:­

"6­A. (1) A defendant in a suit may in addition to his right of

pleading a set­off under Rule 6, set­up by way of counterclaim
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 filling of the suit but before the defendant
has delivered his defence or before the time limited for delivering
his defence has expired, whether such counterclaim is in the
nature of a claim for damages or not;

Provided that such counterclaim shall not exceed the pecuniary

limits of the jurisdiction of the Court.

(2) Such counterclaim shall have the same effect as a cross­suit so

as to enable the Court to pronounce a final judgment in the same
 11

suit, both on the original claim and on the counterclaim.

(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 counterclaim shall be treated as a plaint and governed by

the rules applicable to plaints.

6­B. Where any defendant seeks to rely upon any ground as

supporting a right of counterclaim, he shall, in his written
statement, state specifically that he does so by way of
counterclaim.

6­C. Where a defendant sets up a counterclaim and the plaintiff

contends that the claim thereby raised ought not to be disposed of
by way of counterclaim but in an independent suit, the plaintiff
may, at any time before issues are settled in relation to the
counterclaim, apply to the Court for an order that such
counterclaim may be excluded, and the Court may, on the hearing
of such application make such order as it thinks fit."

(emphasis supplied)

25. Under Rule 8 any ground of defence which has arisen after
the institution of the suit or the presentation of a written
statement claiming a set­off or counter­claim may be raised by
the defendant or plaintiff, as the case may be, in his written
statement. Under Rule 9 no pleading subsequent to the written
statement of a defendant other than by way of defence to a set­off or
counter­claim shall be presented except by leave of the Court and upon
such terms as the Court thinks fit, but the Court may at any time
require a written statement or additional written statement from any
of the parties and fix a time for presenting the same.

26. A perusal of the abovesaid provisions shows that it is the

Amendment Act of 1976 which has conferred a statutory right on
a defendant to file a counter­claim. The relevant words of Rule 6A
 12

are­

"A defendant in a suit may, in addition to his right of pleading a set­

off under Rule 6,.....before the defendant has delivered or before the
time limited for delivering his defence has expired".

These words go to show that a pleading by way of counter­claim

runs with the right of filing a written statement and that such
right to set up a counter claim is in addition to the right of
pleading a set­off conferred by Rule 6. A set­off has to be pleaded
in the written statement. The counter­claim must necessarily find
its place in the written statement. Once the right of the defendant
to file written statement has been lost or the time limited for
delivery of the defence has expired can neither the written
statement be filed as of right nor a counter­claim can be allowed
to be raised, for the counter­claim under Rule 6A must find its
place in the written statement. The Court has a discretion to
permit a written statement being filed belatedly and, therefore,
has a discretion also to permit a written statement containing a
plea in the nature of set­off or counter­claim being filed belatedly
but needless to say such discretion shall be exercised in a
reasonable manner keeping in view all the facts and
circumstances of the case including the conduct of the defended,
and the fact whether a belated leave of the Court would cause
prejudice to the plaintiff or take away a vested right which has
accrued to the plaintiff by lapse of time.

27. We have already noticed that the defendant was being proceeded
ex­parte. His application for setting aside the ex­parte proceedings was
rejected by the Trial Court as also by the High Court in revision. In
Sangram Singh v. Election Tribunal, Kotah­, this Court held that in
spite of the suit having been proceeded ex­parte the defendant has a
right to appear at any subsequent stage of the proceedings and to
participate in the subsequent hearings from the time of his
appearance. If he wishes to be relegated to the position which he would
 13

have occupied had he appeared during those proceedings which have

been held ex­parte, he is obliged to show good cause for his previous
non­appearance. It was clearly held that unless good cause is shown
and the defendant relegated to the position backwards by setting aside
the proceedings held ex­parte, he cannot put in a written statement. If
the case is one in which the Court considers that a written statement
should have been put in and yet was not done, the defendant is
condemned to suffer the consequence entailed under Order 8 Rule 10.
The view taken in Sangram Singh by a two­Judges Bench was
reiterated and re­affirmed by a three­Judges Bench in Arjun Singh V.
Mohinder Kumar and Ors.­. Certain observations made by this Court
in Laxmidas Dayabhai Kabrawala v. Nandbhai Chunilal Kabrawala
are apposite. It was held that a right to make a counter­claim is
statutory and a counter­claim is not admissible in a case which is
admittedly not within the statutory provisions. The crucial date for
the purpose of determining when the counter­claim can be said
to have been filed and pleaded as on a par with a plaint in a
cross suit is the date on which the written statement containing
the counter­claim is filed. Save in exceptional cases a counter­
claim may not be permitted to be incorporated by way of
amendment under Order 6 Rule 17 of the CPC.

28. Looking to the scheme of Order 8 as amended by Act 104 of

1976, we are of the opinion, that there are three modes of
pleading or setting up a counter­claim in a civil suit. Firstly, the
written statement filed under Rule 1 may itself contain a counter­
claim which in the light of Rule 1 read with Rule 6­A would be a
counter­claim against the claim of the plaintiff preferred in exercise
of legal right conferred by Rule 6­A. Secondly, a counter­claim may
be preferred by way of amendment incorporated subject to the leave
of the Court in a written statement already filed. Thirdly, a counter­
claim may be filed by way of a subsequent pleading under Rule 9. In
the latter two cases the counter­claim though referable to Rule 6­A
cannot be brought on record as of right but shall be governed by the
 14

discretion vesting in the Court, either under Order 6 Rule 17 CPC if

sought to be introduced by way of amendment, or, subject to exercise
of discretion conferred on the Court under Order 8 Rule 9 CPC if
sought to be placed on record by way of subsequent pleading. The
purpose of the provision enabling filing of a counter­claim is to avoid
multiplicity of judicial proceedings and save upon the Court's time as
also to exclude the inconvenience to the parties by enabling claims
and counter­claims, that is, all disputes between the same parties
being decided in the course of the same proceedings. If the
consequence of permitting a counter­claim either by way of
amendment or by way of subsequent pleading would be
prolonging of the trial, complicating the otherwise smooth flow
of proceedings or causing a delay in the progress of the suit by
forcing a retreat on the steps already taken by the Court, the
Court would be justified in exercising its discretion not in
favour of permitting a belated counter­claim. The framers of
the law never intended the pleading by way of counter­claim
being utilized as an instrument for forcing upon a re­opening
of the trial or pushing back the progress of proceeding.
Generally speaking, a counter­claim not contained in the
original written statement may be refused to be taken on
record if the issues have already been framed and the case set
down for trial, and more so when the trial has already
commenced. But certainly a counter­claim is not entertainable
when there is no written statement on record. There being no
written statement filed in the suit, the counter­claim was
obviously not set up in the written statement within the
meaning of Rule 6­A. There is no question of such counter­
claim being introduced by way of amendment; for there is no
written statement available to include a counter claim therein.
Equally there would be no question of a counter­claim being
raised by way of ''subsequent pleading'' as there is no ''previous
pleading'' on record. In the present case, the defendant having
 15

failed to file any written statement and also having forfeited his
right to filing the same the Trial Court was fully justified in not
entertaining the counter­claim filed by the defendant­appellant. A
refusal on the part of the Court to entertain a belated counter­claim
may not prejudice the defendant because in spite of the counter­
claim having been refused to be entertained he is always at liberty to
file his own suit based on the cause of action for counter­claim.

29. The purpose of the defendant which was sought to be achieved by

moving the application dated 2.5.1995 under Order 8 Rule 6­A CPC
was clearly mala fide and an attempt to reopen the proceedings,
including that part too as had stood concluded against him
consequent upon rejection of his application under Order 9 Rule 7
CPC. Fortunately, the Trial Court did not fall into the defendant's
trap. If only the Trial Court would have fallen into the error of
entertaining the counter­claim the defendant would have succeeded
in indirectly achieving the reopening of the trial in which effort,
when made directly, he had already failed. There being no written
statement of the defendant available on record and the right of the
defendant to file the written statement having been closed, finally
and conclusively, he could not have filed a counter­claim.

(Emphasis supplied by me)

16. In the case of Bollepanda P. Poonacha & Anr vs K.M.

Madapa, 2008 (XIII) SCC 179, the Hon'ble Supreme Court
considered the effect of the amendment in C.P.C. and the
provisions of under Order 8 Rule 6­A and held as under:

9. Order 8 Rule 6­A of the Code of Civil Procedure reads as under :

6­A. Counterclaim 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 counter­claim 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
 16

defendant has delivered his defence or before the time limited for
delivering his defence has expired, whether such counterclaim is in the
nature of a claim for damages or not:
(Emphasis supplied)

10. Order 6 Rule 17 of the Code provides for amendment of pleadings.

Subject of course to the applicability of the proviso appended thereto
(which is not applicable in the instant case), such applications
ordinarily are required to be considered liberally. It is also not much in
doubt or dispute that amendment of written statement deserves more
liberal consideration than an application for amendment of plaint.
Order 8 Rule 9 again, subject to the statutory interdict enables a
defendant to file additional pleadings.

11. The provision of Order 8 Rule 6­A must be considered having regard
to the aforementioned provisions. A right to file counter claim is an
additional right. It may be filed in respect of any right or claim,
the cause of action therefore, however, must accrue either before
or after the filing of the suit but before the defendant has raised
his defence. The respondent in his application for amendment of
written statement categorically raised the plea that the appellants had
trespassed on the lands in question in the summer of 1998. Cause of
action for filing the counter claim inter alia was said to have arisen at
that time. It was so explicitly stated in the said application. The said
application, in our opinion, was, thus, clearly not maintainable. The
decision of Sri Ryaz Ahmed is based on the decision of this Court in
Baldev Singh v. Manohar Singh1.

12. Further, the facts of the instant case are distinguishable from those
of the Sri Ryaz Ahmed. In that case, the proposed amendment by the
defendant was allowed to be filed as he wanted to make a counterclaim
by way of a decree for grant of mandatory injunction to remove the
built­up area on the disputed portion of land. It was therein held that
instead of driving the defendant to file a separate suit therefor, it was

1 (2006) 6 SCC 498

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more appropriate to allow the counterclaim keeping in mind the prayer

of a negative declaration in the plaint. However, in the instant case, the
counterclaim was purported to have been filed for passing of a decree
for recovery of possession of the disputed land after the suit had been
filed.

13. Baldev Singh1 is not an authority for the proposition that the
Court while allowing an application for amendment will permit
the defendant to raise a counter claim although the same would
run counter to the statutory interdicts contained in Order 8 Rule
6­A. Some of the decisions of this Court in no uncertain terms held
it to be impermissible. See Mahendra Kumar Vs. State of Madhya
Pradesh2 and Shanti Rani Das Dewanjee Vs. Dinesh Chandra
Day3 .

14. In Gurbachan Singh Vs. Bhag Singh 4, this Court clearly held: (SCC
P.771, para 3)

"3... the limitation was that the counter­claim or set­off must be

pleaded by way of defence in the written statement before the
defendant filed his written statement or before the time limit for
delivering the written statement has expired, whether such counter
claim is in the nature of a claim for damages or not."

15. A belated counter claim must be discouraged by this Court. See

Ramesh Chand Vs. Anil Panjwani5. We are, however, not unmindful of
the decisions of this Court where a defendant has been allowed to
amend his written statement so as to enable him to elaborate his
defence or to take additional pleas in support of his case. The Court in
such matters has a wide discretion. It must, however, subserve the
ultimate cause of justice. It may be true that further litigation should be
endeavoured to be avoided. It may also be true that joinder of several
causes of action in a suit is permissible. The Court, must, however,
exercise the discretionary jurisdiction in a judicious manner. While
2 (1987) 3 SCC 265
3 (1997) 8 SCC 174
4 (1996) 1 SCC 770
5 (2003) 7 SCC 350
 18

considering that subservance of justice is the ultimate goal, the

statutory limitation shall not be overstepped. Grant of relief will
depend upon the factual background involved in each case. The Court,
while undoubtedly would take into consideration the questions of
serious injustice or irreparable loss, but nevertheless should bear in
mind that a provision for amendment of pleadings are not available as
a matter of right under all circumstances. One cause of action, cannot
be allowed to be substituted by another. Ordinarily, effect of an
admission made in earlier pleadings shall not be permitted to be taken
away. See State of A.P & Ors. Vs. Pioneer Builders 6 and Steel Authority
of India Ltd. Vs. Union of India 7 and Himmat Singh Vs. I.C.I. India
Ltd8.

16. We, for the reasons stated herein before, are of the opinion that the
learned Civil Judge was not correct in allowing the application for
amendment of the written statement.

17. Even prior to coming into force of the Code of Civil Procedure
(Amendment) Act, 1976, the Court could treat a counter claim or a
cross­suit.

19. Parliament, however, has placed an embargo while giving effect to

the decision of this Court in inserting Order 8 Rule 6­A of the Code of
Civil Procedure. While there exists a statutory bar, the Court's
jurisdiction cannot be exercised.

(Emphasis supplied by me)

17. Thus, applying the amended provisions of C.P.C. on the

facts of the present case, this Court finds that the application of
the defendant­revisionist was lawfully rejected by the trial court
by the impugned order inasmuch as the said application was
filed by the defendant­revisionist with respect to the alleged
cause of action, which arose prior to the filing of the suit. The
6 (2006) 12 SCC 119 : (2006) 9 Scale 520
7 (2006) 12 SCC 233 : (2007) 1 SCC (L&S) 630 : (2006) 9 Scale 597
8 (2008) 3 SCC 571 : (2008) 2 Scale 152
 19

written statement was filed on 13.4.2006 in which no counter­

claim was set­up. The issues were framed on 1.8.2006. The
application under Order 7 Rule 11 of C.P.C. filed by the
defendant­revisionist was rejected by the court below on
28.7.2010, which order was accepted by the defendant­
revisionist. Thereafter the application under Order 6 Rule 17 of
C.P.C. for amendment and for setting up counter claim under
Order 8 Rule 6­A of C.P.C. was filed on 21.11.2011. Thus, the
applications were filed by the defendant­revisionist much
belatedly and the same were contrary to the statutory mandate
in the aforesaid provisions itself enacted by the parliament. The
law on this point has been authoritatively laid down by the
Hon'ble Supreme Court in the cases of Ramesh Chand
Ardawatiya (supra) and Bollepanda P. Poonacha & Anr
(supra).

18. In view of the above discussion, I find no merit in the

present revision. Consequently, the revision is dismissed.

Order Date :­ 23.11.2015

Ajeet
(Surya Prakash Kesarwani,J)