IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.Nos.2120 & 2134 OF 2010 C.R.P.No.2120 of 2010 Between: Anaparthi Venkata Ramana Murthy …Petitioner A n d Garapati Somasekhara Rao and another ..Respondents AND C.R.P.No.2134 of 2010 Between: Anaparthi Venkata Ramana Murthy ..Petitioner A n d Garapati Sowjanya and another ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.Nos.2120 & 2134 OF 2010 COMMON ORDER: These two civil revision petitions arise from a common order dated 15.04.2010 in I.A.Nos.1419 & 1848 of 2009 in A.S.No.203 of 2007, on the file of the Judge, Family Court-cum-Additional District Judge, Rajahmundry, wherein the said applications filed by the respondents herein were allowed and the respondents herein were permitted to take additional grounds of appeal and also to amend the written statement of D-1. 2. I.A.No.1419 of 2009 was filed under Section 151 CPC seeking permission to raise additional grounds of appeal and I.A.No.1848 of 2009 was filed under Order VI Rule 17 CPC seeking permission to amend the written statement of D-1. 3. As both the revisions arise from a common order and are in between the same parties, they are heard together and are being disposed of by this common order. 4. Arguments of the learned counsel for the petitioner and the learned counsel for the respondents in both the revisions are heard. Perused the record. 5. The first respondent Garapati Sowjanya, represented by her mother, filed the suit O.S.No.67 of 1999 for redemption of a mortgage and for partition and separate possession of her share against the petitioner herein A.V.Ramana Murthy, the mortgagee and her father second respondent Somasekhara Rao, mortgagor. According to her, the suit property was a joint family property and the mortgage executed by her father (D-2) in favour of D-1 is vitiated being avyavaharika and that being a co-sharer, she is entitled to redeem the mortgage and alternatively she prayed for declaration that the mortgage is not binding to the extent of her undivided share. The petitioner herein, the mortgagee, besides filing a written statement contesting the said suit also filed a separate suit O.S.No.158 of 2002 for a preliminary decree for recovery of the amount due under the mortgage. The second respondent herein, who is father of the minor girl Sowjanya and who was second defendant in O.S.No.67 of 1999 filed a written statement disputing the validity of the mortgage and alleging that the mortgagee played fraud on him and obtained the mortgage deed while the mortgagor was in a drunken state. After framing necessary issues in both the suits, the trial Court by a common judgment dated 05.02.2007 decreed the suit O.S.No.158 of 2002 and passed a preliminary decree granting six months time for redemption against the mortgagor Somasekhara Rao and dismissed the suit against his daughter Sowjanya. The suit O.S.No.67 of 1999 filed by Sowjanya was dismissed in toto. The counter claim made by Sowjanya, who was the second defendant in the suit O.S.No.158 of 2002, seeking rendition of accounts of profits realized from the suit land from 16.04.1998, was also dismissed. Aggrieved by the dismissal of her suit O.S.No.67 of 1999, Sowjanya, the plaintiff, therein preferred an appeal in A.S.No.183 of 2007 and A.S.No.203 of 2007 against the judgment in O.S.No.158 of 2002 before the Additional District Judge, Rajahmundry. When both the appeals were pending, she along with her father filed I.A.No.1419 of 2009 seeking permission to raise additional grounds of appeal and I.A.No.1848 of 2009 in A.S.No.203 of 2007 under Order VI Rule 17 CPC seeking to amend the written statement of D-1 in O.S.No.158 of 2002. According to the respondents herein, the petitioner-mortgagee previously contended that he was a cultivating tenant and he filed A.T.C.No.8 of 2004 for declaration as such and subsequently after filing of the two appeals A.S.Nos.183 and 203 of 2007, the said A.T.C.No.8 of 2004 was withdrawn by him and the same was accordingly dismissed on 19.02.2008 and the petitioner herein is now contending that he is only a usufructuary mortgagee but not a cultivating tenant and, therefore, the necessity to raise the additional grounds of appeal and also to make the counter-claim arose on account of dismissal of A.T.C.No.8 of 2004, which is a subsequent event. 6. The learned counsel for the petitioner would mainly contend that the question of permitting the respondents to make a counter claim at this stage while the appeals are pending does not arise in view of the specific bar contained in Order VIII Rule 6-A. Order VIII Rule 6-A states that a defendant in a suit may set up, by way of a counterclaim against the claim of the plaintiff, any right or claim in respect of cause of action accruing to the defendant against the plaintiff either before or after 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. Thus, a plain reading of the above provision revealed that a counterclaim by the defendant can be made against the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. 7. The learned counsel for the petitioner would rely upon a decision in BOLLEPANDA P.POONACHA AND ANOTHER V. K.M.MADAPA[1] wherein the Apex Court held as follows: “The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, 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 counterclaim inter alia was said to have been arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable.” It was further held as under: “A belated counterclaim must be discouraged by this Court. See Ramesh Chand Ardawatiya v. Anil Panjwani ((2003 7 SCC 350). 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 considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped.” It was held in the above decision that if there exists a statutory bar, the Court’s jurisdiction cannot be exercised. In the present case, the respondents filed I.A.No.1848 of 2009 under Order VI Rule 17 CPC as if to amend the written statement. In fact, the proposed amendment is only in the nature of making a counterclaim by seeking to add Para 5-A to Para 5 and Paras 13-A to 13-E to Para-13 of the written statement. The proposed amendments would disclose that a counterclaim is being made against the plaintiff for rendition of accounts giving full discharge to the mortgage and payment of excess amount realized by him. The value of the said relief of counterclaim is mentioned as Rs.3 lakhs. Making such a counterclaim at this stage during the pendency of the appeal clearly violates the provisions of Order VIII Rule 6-A CPC whereunder any counterclaim shall be made only before the defendant has delivered his defence. 8. In view of the principles laid down in the above decision of the Apex Court that where there exists a statutory bar, the Court’s jurisdiction cannot be exercised, the impugned order allowing the said application and permitting the counterclaim at the stage of appeal, is clearly unsustainable, as the same amounts to exercising a jurisdiction contrary to the provisions of the statute which is impermissible. The impugned order, though takes note of the contention raised by the petitioner herein vis-à-vis the provisions of Order VIII Rule 6-A CPC, simply brushed the same aside without furnishing any reasons. Insofar as raising of additional grounds of appeal is concerned, it is considered that the respondents herein can be permitted to raise the additional grounds of appeal as proposed in I.A.No.1419 of 2009 and the same can be considered by the appellate Court along with other grounds of appeal. The impugned order allowing I.A.No.1419 of 2009 is, therefore, held not liable to be interfered with, but, however the impugned order insofar it allows I.A.No.1848 of 2009, permitting the counterclaim, is held unsustainable and the same is accordingly set aside. 9. In the result, C.R.P.No.2134 of 2010 filed against the order in I.A.No.1419 of 2009 is dismissed and C.R.P.No.2120 of 2010 filed against the order in I.A.No.1848 of 2009 is allowed. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 15th June, 2011. Lrkm. [1] (2008) 13 SCC 179