417 r CR N1197 S 1198 of 2009 OSMI W1 1J IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1198 CR No1971of 2009 OSt Decided on 2 Ole04010 Mahant Jagmohan Singh Petitioner versus Mahant Karamjit Singh 8 others Respondents m CORAM 2 HONBLE MR JUSTICE AJAY TEWARI Present Mr Anil KshetarpalAdvocate 0 for the petitioner C Mr MLSarin Sr Advocate I with Ms Alka Sarin Advocate for the respondents C5 I 1To be referred to the reportersor not7 Yes 2 Whether the judgmentshould be reportedin the Digest7 Yes Z AJAY TEWARI J C This order shall disposeof CR Nos 1197 8 1198 of 2009 as common questionsof facts and Iaw are involved Brief facts of the case 08 are taken from CR No1197 of 2009 ao This petition has been filed against the order dated me Z 07022009 wherebythe appiicationfor amendment of the counter Om claim has been allowed The petitionerhad filed a suit seekingpermanentinjunction originally against respondents No1 8 2 restraining them from interferingill the management control and possessionover the Dera SantpuralGurudwara Santpuraclaimingthat he had been handed over the possession and management by way of compromise dated 21032000 On the applicationmoved by the respondentNo it was impleadedas defendant The said respondentfiled a written statement denying the vaiidity of the alleged compromise dated 21032000 The other averments made in the plaint were also denied It was stated that the petitioner Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 418 CR Nol97Jof 2009 08141 2m IJ being a Iiad been receiving donations illegaliy without When he was asked to give accounts he filed the present suit RespondentNo3 also filed a counter claim dated 24032003 praying that the petitioner be restrained from interferingin the managementand control of the trust properties and further from obstructingthe operationof Gollak and collecting m Q rent from the tenants of the Trust Subsequently by application dated 30052008 amendment was sought in the counter claim to 0 0 the effect that by a resolution dated 27122003 the petitionerhad I C5 been removed from the managementof Gurudwara Trust as trustee I and thus claiminga mandatoryinjunctiondirectingthe petitionerto Z hand over the possessionof the premisesin his control Ld Trial court havingallowed this application the petitioner has filed the C instant petition I 08 Learnedcounsel for the petitionerhas raised two main r His first argumentis that under Order 1 Rule 68 only a that cause of action can be incorporated in the counter claim as has Z ll arisen before the fiiing of the written statement In the present casethe resolution dated 27122003 was passedafterthe written statementfiled on 30032003 and thus the said amendment could not be allowed His second argument IS that the applicationfor amendmentwas made aimost 5 years after the resolution was passedand it was beyondthe periodof Iimitation In su pport of his argu me nts he has relied u pon the followingjudgmentsl In the case of Kulshresth vs Bahadur Singh reportedas 1998 PLR 736 this court has held as followsl The next point that remains to be considered is o Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 419 41148 CR Noell971of 2009 O8MI J whetherRule 64 of Order VIII of the Code of Civil Procedurebars the filing of a counter claim after the filingof a written statement This point need not detain US Iongfor rule 6ll does not on the face of it bar the filingof a countereclaim by the defendant after he had filed the written statement What is Iaid down under RuIe 61 is that a counter claim can be filed provided the cause of action had accrued to the n defendant before the defendant had delivered his defence or before the time Iimited for delivering his 0 C defence has expired whether such counter claim is in I the nature of a claim for damagesor not The High C Court in our opinionhas misread and misunderstood the provision of Rule 6A in holding that as the had filed the counter claim after the Iingof Z the written statement the counter claim was not maintainable The finding of the High Court does not get any support from Rule 6A61 of the Code of Civil Procedure As the cause of action for the counterclaim 08 had arisen before the filing of the written statement the r counterclaim was therefore quite maintainable Under m7 Article 113 of the Limitation Act 1963 the period of Z Iimitation of three years from the date the right to sue OL accrues has been provided for any suit for which no period of Iimitation is provided elsewhere in the Schedule 11 In the case of Mahendra Kumar vse State of Madhya Pradesh 1987 SCC 265 Honble SupremeCourt has held as follows It has been held by this Court that right to file a counter claim under Order VIII Rule 6A of the CPC is referableto the date of accrual of the cause of action If the cause of action had arisen before or after the filing of the suit and such cause of action continued upto the date of filing written statement or extended date of filing l Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 420 r114g CR Nol971of 2009 OSMI 4e 1 written statement such counter claim can be filed even after filing the written statement Il In the case of Ganu vse Manik reported as 200331 Cive CeCe133 Honble BombayHigh Court has held as followsl In the presentmatter what is being sought to be done IS the amendment in the counterclaim on the basisof the cause of action which arose much after filing 1 of the written statement as per the defendants Q themselves So far as regards the counterclaim is 0 concerned there is no dispute that it was filed well C within time and appearedto have been rightly taken on I C record However amendingthe counterclaim on the I basis of the subsequent cause of action cannot be related back to the date of written statement or the Z counter claim first filed In the instant petition Iooking m at the matter from any angle it is clear that amending 0 the counter claim by adding certain additional claims I that too the cause of which arose much after the filing 08 of the written statement or counter claim would r virtuallyamount to filing of fresh counter claim after the 7 Iimited periodunder Order VIII RuIe 6A was over In Z the opinionof this Court such a counter claim by way of amendment to the originalcounter claim in no case can be permitted muchless when the cause of action for the amendedcounter claim arose after the date of filing of the written statement or after the date of raising of the first counter claim Il On the other hand Iearned counsel for the respondents reliedon the decision of this Court in the case of Milkha Singh Vse Parshotam Dass reported as 200711 RCR Civill 495 This court in Suraj Mal a State of Haryana 19992 RCRCivill 408 P8H17 1999 PLJ 303 observed that all amendments necessary to determine 1 questionsin controversy are to be allowed Besides it IS Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 421 eV 41146 CR No19710f 2009 08M1 m5 J the duty of the court to determine the rights of the partiesand not to punish them for the mistakes if any However amendment is to be disallowed when ll the applicationIS filed mala fide 29 withdraws admissions made without them 639takes away vested rightsof the other party and the other partY cannot be into terms of cost and 49 claim has become time barred when amendment is sought In m r PunjabNational Bank vsndian Bank 2003 RCRCivil 668SCI2 2003 PLJ 458 it was 0 observedthat amendment of a plaint is generallynot to 0 be disallowedexcept where a time barred claim is I C5 soughtto be introduced or 6ii where it changesthe I nature of suit itself or oii9 it is mala fide or 19the other partycannot be placed in the same position had the Z plaintbeen originalliled correctlyi e The other side a has Iost right of a valid defence by subsequent r amendment Il In the case of Pankaja a another vsa Yellappa1eadl C6 C by LRs 8t others 2004 6 SCC 415 Honble SupremeCourt held 7 as followsl Z We think that the course adoptedby this Court in t1 RaguThilak De John case appliesappropriately to the facts of this case The courts below have proceededon an assumption that the amendment sought for by the appellantsIS ipsofacto barred by the Iaw of Iimitation and amounts to introduction of different relief than what the plaintiffhad asked for in the originalplaintNe do not agree with the courts below that the amendment soughtfor by the plaintiffintroduces a different relief so as to bar the grant of prayer for amendment necessary factualbasis has alreadybeen Iaid down in the plaint in regardto the title which of course was denied by the respondent In his written statement which will be an ISSue to be decided in a trial Therefore in the facts of Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 422 rk114B CR Noell971of 2009 OSMI 6 e this case it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducinga different relief Il The Iaw in regard to amendment of the plaint is also quiteclear and consistent that there is no absolute rule that in every case where a relief is barred because of Iimitation an amendment should not be allowed Discretion in such cases 1 Q depends on the facts and circumstances of the case The 0 jurisdiction to allow or not allow an amendment beingdiscretionary C0 I the same will have to be exercised on a judiciousevaluation of the C5 facts and circumstances in which the amendment is sought If the I grantingof an amendment really subserves the ultimate cause of Z justiceand avoids further Iitigationthe same should be allowed There can be no straitjacketformula for allowingor d isa Ilowing an amendment of pleadings Each case depends on the factual O8 backgroundof the case Clo It is in the context of these judgmentsthat the present e Z controversyhas to be decided To take the second argumentfirst L th e questio n is whether on the basis of the resolution dated 27 22003 a suit to divest the petitionerof the managementof the Gurudwara under his control would be barred by Iimitation In my opinionit cannot be conclusivelyheld so at this stage Which IS not to say that this court is holdingthat the claim is within Iimitation but only that this matter will be examined by the Trial Court Merelybecause of the inaction of a charitable body if it is proved that such a bindingresolution was indeed passedthen it cannot be held at this stage that mere operationof time would perpetuate an invalid ciaim It must be noticed that in the present case the l Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 423 C et1148 CR No19710f 2009 OSMI 7 1 dispute IS between an individual and a publictrust and the interest ofjusticecannotbe heldsubservienttotheindividualinterestofthe petitioner to such an extent as to bar even examination of the claim of the publictrust As regardsthe objectionrelatingto the cause of action havingoccurred after the written statement filed even though at 1 r first blush the argumentsound attractive yet keeping in view the dictum in the case of Milkha Singtsupra and PankajaS another 0 0 supra it has to be held that this amendment which goes to the I C5 root of the matter and is necessary to determine the real I controversybetween the parties would relate back to the date of Z filing the original counterclaim As mentioned above by the SupremeCourt in case of Pankaja 8 anotherlpraJ granting of L amendment would subserve the ultimate cause of justice and would I 08 avoid further Iitigation oo At th is stage it would be necessa ry to notice the 7 judgmentof Usha Balashaheb Swami 8 Others vss Kiran Z Appaso Swami a others reported as 200711 RLR page 631 Om wherein Honble SupremeCourt held as followsl For the reasons aforesaid we are unable to sustain the judgment of the High Court rejecting the applicationfor amendment of written statement on the groundthat if such amendment was allowed it would seriously prejudice the plaintiff There IS yet another aspectof the matter The trial court on consideration of the written statement as well as the application for amendment of the written statement in its discretion allowed the applicationfor amendment of the written statement The High Court ought notto have reversed the said order of the trial court rejectingthe application Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 424 1 ot1148 CR 8 l for amendment of the written statement when the trial court has exercised its discretion in allowing the amendment of written statement on consideration of the principlesof Iaw and the material on record Il In the case of Puran Ram vs Bhaguram S another reported as 20082 Supreme 166 Honble SupremeCourt held as followsl r vVe may now take into consideration as to 0 whether the High Court in the exercise of its power 0 under Article 227 of the Constitution was justied in I rejectingthe applicationfor amendment of the plaint C which in the discretion of the trial court was allowed I INe are of the view that the High Court ought not to Z have interfered with the order of the trial court when the 7 order of the trial court was passed on sound r consideration of Iaw and facts and when it cannot be said that the order of the trial court was either without I jurisdictionor perverse or arbitrarY Il 08 ao In these circumstances I hold that the amendment of 7 the counter claim cannot be assailed Z Consequentlythis petitionis dismissed Om lJ 1 2010 1 sonta JUDGE Uma 2012.12.18 14: 11 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document