^'0& HISH COURT OF CHHATTIS6ARH AT BILASPUR W.P.rd No.3537 of 2007 POST FOR ORDERS ON _2^_'FEBRUARY. 200 SdJ- Dhirendra Mishra Judge PETTTEONER Hemraj Agarwal Vs RESPONbENTS Smt. Bharti & others mWCOJKT OF CHHATnSSARH AT BILA5PW PFTmONER Def^dantNo.l W.P.M No.3537 of 2007 Hemraj Agarwal, 5/o Soverdhan Das Agarwo.l. Aged about 34 years, R/o Lodhipara Stution Road, Raipur, Tah. <S bistrict Raipur (C.6.) Vs RESPONDENTS 1. Smt. Bhart-i W/o Rameshwar Aged about 26 years. 2. ftameshwar S/o Bisawha Sunhare Agsd about 31 years. R/o fiudiyari, Raipur, Tah. <& District Raipur (C.6.) PLAINTIFFS 3. Stateof Chhatt-isgarh Through Collector Raipur, District Raipur (C.G.) DEFENDANT N04. Present: Mr. Katan Pusty, Advocate for the petitioner. Mr. 5atyendro 5ahu, Advocate for respondent No.l & 2. Mr. Rajendra Agarwal, Panel Lawyer for respondent No.S/State. OR t>ER (Passed on i8.Z.2008) Per Dhirendra Mlshra^J: 1. By this petition under Articte 227 of the Constitution of India ttie petitioner/defendant No.l has impugned the order dated 27.4.2007 pcissed by leamed 7t Civil Judge, Class-II, Raipur in Civit Suit No.llOA/06 whereby leamed Civil Judge has rejected the application of the petitioner filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short 'Code') for amending the written statement to incorporote the counter-ctaim. The part-ies in this petition shall be referred to hereinafter as per their status before -Hie trial court. 2. Briefly stated facts necessary for the purpose of this petition are that the plaintiffs have filed a civil suit for declaration and perpetual injunction with the averments thdt they purchosed the suit land fsssSs-S&^^^-lf-^- through registered sale deed on 22.3.2004 and since then their names have been mutated in the revenue record and they are in possession. However, the defendant No.l is claiming that he is the owner of suit land and he shall forcibly dispossess the plaintiffs. He also submitted friwlous application before the revenue euthorities for getting his name recorded in the revenue record. Defendant No.l in his written statement dated 12.9.2005 denied the averments of 1+ie plaint and it wois claimed that the suit land was purchdsed by himon 20.3.2005 by paying consideration of Rs.72,000/- from oneSuresh Natriiuji. He has also pleaded that by maniputating the revenue records in connivance with the Halka Patwari vendors of the plaintiffs got their names entered into the revenue record. Defendant No.l moved an oppfication under Order 6 Rule 17 of the Code and proyed for permission to incorporate following amendments in his written statement;- i. During the pendency of the suit, defendant No.l's appealagainst the order of mutation in favour of the plaintiffs was allowed by the 5ub Divisional Officer and accordingly the names of the plaintiffs and others have been deleted from the revenue recordsand defendant No.l's name has been recorded. ii. During the pendency.of the suit, the plaintiffs have illegally constructed a house over a part of the suit land admeasur'ing 560 sq. ft. without cmy information to the court- and accordingly prayed for mandatory injunction for removal of the illegal construction. 3. Leamed Civi! Judge by impugned order pSrtly allowed the c^plication for amendment, however, pmyer for amendment whereby the defendant No.l has prayed for mandatory injunction for removal of illegal construction over the disputed land during pendency of the suit hos been rejected with an observation that by the proposed amendment the defendant No.l has prayed to set-up a counter-ctaim and therefore, such amendment in the writt'en statement cannot be permitted. 4. Leamed counset for the petitioner/defendant No.l relying upon the judgment in the matt-er of Ramesh Chand Ardawatiya Vs. Anii Par(jw<ini argued that the counter-claim may be set-up by -rfie defendont by amending the written statement already fited with the lewe of the Court as the purpo^ of the provision is to avoid multiplicity of the judicial process and to save upon the court''s time ois also to exclude the inconvenience to the parl-ies so that all the disputes between the same parties may be decided during the course of the same proceeding. Learned counsel furl'her relying upon the judgment in the matter of Gwbachon Sirgh V. Bhag Singh & Others argued'that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, SKt up.by way of counter-claim against the claim of +he plaintiff, any right or ctaim 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 tiie defendant has detivered his defence, the defendant in the suit may in addition to, under Rule 6 can also set up by way of counter-claim against the claim of the plaintiff cuiy right or claim in respect of the cause of action accruing to the defendant against the pfciintiff. Reliance is also ptaced in the matter of Baldev Singh & others V. Manohar Singh & another cmd it is arguect that amendment of the pleadings should be liberally allowed unless serious injustice or irreparabte loss is coused to the other side. 5. On the other hand, leamed counsel for reqsondent No.l & 2/plaintiffs argued -that discretion exercised by the trial Court for accepting or rejecting the apptication for amendment shoutd not normalty be tar interfered with. During the pendency of this petition, issues have been framed by the trial Court- in the matter and the matter has been fixed for recording of the evidence and if the amendment is allowed at this stage of proceedings, it uvould cause serious prejudice to the contesting respondents. In a suit for declaration dnd perpetual injunction of the plaintiff the defendant cannot be permitt'ed to set up 1(Z003)7SCC350 2 (1996)15cc 770 3 2007 CCT) MPJft 27 ^^a^iitiffiC&^.'^f^.^-stes »a*WKH*<.i(]fStsfeB)U.u.-^,~».< < '<^- a counter-claim whereby mandatory injunction for removal of alleged illegal construction by the pkiintiff has been proyed for. Reliance is placed in the matters of Ajendraprosadji N. Ponde & another V. Swamikeshavprakashdasji <& Usha BalasahBb Swami & ws Vs. Kiran Appasao Swami & ors 6. I have heard leamed counsel for the parties. 7. From perusal of the impugned order it is clear thoit the application preferred by defendont No.l for amendment in the writl-en statement was parl-ly allowed. The amendment whereby defendant No.l has prayed for sett-ing-up a counter claim has been rejected on the ground that counter-ctaim cannot be set-up by omending the writ-ten statement under Order 6 Rule 17 of the Codeand no other ground has been assigned for rejecting the apptication. From perusal of the application for amendment it flppears that defendant No.l has sought the above amendment on the ground that during pendency of the suit the ptaintiffs have made illegal construction over a port'ion of the suit land by encroaching over the land without intimation to the court ond accordingly, for removing •Hie illegal construction prayer of mandatory injunction has been sought to be incorporated in the written statement by way of counter claim. 8. In the matter of Ramesh Chandra1 in Para 28 it has been held that as per scheme of Order 8 of the Code there are three modes of pleadings or setting-up a counter claim in a civil suit. Firstly, the written statement filed under Rule 1 may itsetf <yntain a couhter-claim which in the light of Rule 1 read with Rute 6-A would be acounter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rute 6-A. Secondly, a counter-claim 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 fited by way of a subsequent pfeading under Rule 9. In the latter two cases the counter-claim though referobte to Rule 6-A cannot be broughton 4 AIR 2007 Supreme Court 806 5 AI& 3007 Supromo <;our+ 1663 'i- record as of right but ^iall be govemed by the discretion vesting in ttie court. It has been furt+ier held that purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the courfs time as also to exclude inconvenience to the parl'ies. Where the consequence of permitt'ing a counter-claim by way of amendment or by way of aibsequent pleading would prolong -ttie trial, complicate the proceedings or- cause delay in progress of the suit, the Court would be justified in exercising its discretion not in favour of permitt-ing a belatedcounter-ctaim. 9. In the matter of 6urbachan Singh it has been held that in a suit for injunction, a counter-claim for possession can also be entertained. In the matter of Baldev Sin9h the Hon'ble Apex Court has held that amendment of pleadings should be tiberally allowed unless serious injustice or irreparoble loss is likely to be caused to the other side and the provision gives wide and unfettered discretion to the court in allowing amendment of the pleadings. 10. TTius, from the principte of taw laid down in •1+ie above cited judgments it is manifestly clear that in appropriate cases the defendant may be permitted to set-up a counter-claim, even if he has filed the written statement, by permitl'ing him to amend the written statement. However, defendant cannot claim amendment in the written statement to set-up acounter-claim os a matter of right and it is the discretion of the court to permit or refuse the amendment. 11. In the matter of Ajendraprasadji N Pande4 also it has been held that the amendment should not be permitt-ed^at the belated stage when the trial has commenced ond when issues have been settled and the case is set down for recording of evidence. In the matter of Usha Balasaheb Swami it has been held that where the discretion has been exercised by the trial court in deciding an opplication under Order 6 Rule 17 of the Code for amendment, the same should not normally be interfered with by the High Court. 6 12. As already noted above, the leamed Civil Judge has part-ly allowed the aipplicatjon for amendment and rejected the counter-claim only on the ground that the counter-claim cannot be set-up by way of amending the written statement. In view of the judgment of the Supreme Court in the mcrt-fer of Ramesh Chand the reasons assi9ned by •rtie learned Civil Judge for not allowing the counter-claim is on the face of it is erroneous. At the time of passing of the impugned order 1he aiit was at the initial stage, the matter was posted for consequential amendment, issues were yet to be framed and therefore, it cannot be said •t+iat defendont No.l has fited the amendment opplication at the belated stage of suit and the same woutd occasion undue detay in disposal of the suit. On the contrary by the proposed amendment •the defendant No.l has pleaded that during the pendenc/ of the suit the plaintiffs have constructed a house over a port-ion of the suit lond by encroaching itond accordingly prayed for removal of the alleged itlegal construction. Therefore, in the considered opinionof this Court- if the defendant No.l/petitioner is permitted to incorporate the above pleadings ond permitted to set up the counter-claim, all the issues between the litigating part-ies with respect to the suit property could be adjudicated in one proceeding and it would not cause any prejudice to the plaintiffs/respondents No.l & 2 herein. 13. On the basis of aforesaid analysis, the grounds mentioned in the order dated 27.4.2007 for ciancellation of amendment apptication ccinnot be sustained cnd therefore, the impugned order is liabte to be set aside. 14.In the result, the petition is allowed, the impugned order dated 27.4.2007 passed by leorned 7tl' Civil Judge, Ck>ss-II,Raipur in Civil Suit No.llO-A/06 is hereby set aside and consequently, application for amendment (Annexure P-3) in the written statement (Annexure P-2) is allowed. The defenctant No.l to carry out the amendment in the writt'en statement on or before the next date of hearing in the trial court. 15. No order asto costs. Sd/- Dhirendra Mishra Judge