CRP 370/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The instant application under Article 227 of the Constitution of India seeks int ervention of this Court in the exercise of its superintending jurisdiction to se t at naught the order dated 12.9.2011 passed by the learned Munsiff No.1, Kamrup , Guwahati in Misc. (J) Case No. 513/2011 allowing the opposite party’s applicat ion under Order VI, Rule 17 of the Code of Civil Procedure (for short, hereinaf ter referred to as ’the Code’) for amendment of his written statement by incorpo rating a counter claim. I have heard Mr OP Bhati, Advocate for the petitioner and Mr MK Choudhur y, Senior Advocate assisted by Mr JI Barbhuiya, Advocate for the opposite party. The petitioner/ plaintiff has instituted T.S. No. 495/2007 against the o pposite party/ defendant praying inter alia for declaration that Clause-2 of the Memorandum of Understanding dated 5.6.2007 between the parties is void ab initi o being against public policy and that she is not obliged in law to make any pa yment in terms thereof to the opposite party/ defendant. After making his appea rance in the suit on receipt of summons issued therein the opposite party/ defen dant on 29.2.2008 filed his written statement contesting the claim of the petiti oner/ plaintiff. After issues were framed on the basis of the pleadings, on 2.6. 2011 the opposite party/ defendant filed the aforesaid application for amendment of his written statement seeking to assimilate the counter claim. The prayer of counter claim as structured by the opposite party/ defendant in the application for amendment reads as hereunder: Prayer of Counter Claim- A. Your honour would graciously be pleased to pass a decree on the Counter Claim for declaration that the plaintiff are liable to pay Rs. 40,000/- (Rupees Forty Thousand) only per month from the date of filing the instant suit till realizat ion thereof as per the MOU dated 5/6/2007. B. A decree for declaration of the defendant interest over the restaurant i.e. M /S Raja Restaurant as mentioned in the Schedule below of the Counter Claim and e ntitled for Rs. 40,000/- per month w.e.f. September 2007. C. A decree that the MOU dated 5/6/2007 is legal and binding upon both the parti es. D. Cost of the Counter Claim and any other relief and relieves as entitled unde r the law and equity. . In substance, he pleaded that in terms of the Memorandum of Understandin g dated 5.6.2007 he was entitled to Rs. 40,000/- per month which though was paya ble by the petitioner/ plaintiff had been withheld by application of dilatory ta ctics by her in the suit. The counter claim was valued as hereinbelow: The counter claim is valued RS. 40,000/- being the agreed amount per month paya ble to the defendant by the plaintiff as per MOU dated 5/6/2007 for the purpose of jurisdiction. The declaratory fixed Court fees of Rs. 22/- along with the ad valorem court fee of Rs. 1989.10 is paid thereof and the defendant will pay furt her the ad valorem court fees of the counter claim on the basis of the decree ag ainst the plaintiff on the basis of the decree passed by the Hon’blke Court reco verable from the plaintiff. . A written objection was filed by the petitioner/ plaintiff to the prayer for amendment which, however, was allowed by the impugned order. Mr Bhati has argued that having regard to the nature of the counter clai m as detailed in the application for amendment, it is essentially one for recove ry of an amount which would clearly be beyond the pecuniary jurisdiction of the learned Trial Court. He has also urged that the application, having regard to th e date on and from which the counter claim at the rate of Rs. 40,000/- per month has been lodged i.e. September, 2007, is also barred by time. Apart from the om ission on the part of the opposite party/ defendant to mention about his inabili ty to seek the amendment inspite of his due diligence, a mandatory requirement u nder Order VI, Rule 17 of the Code, the counter claim has not been framed in acc ordance with law and, thus, the impugned order which overlooks the above defects , is patently illegal and is liable to be interfered with. Mr Bhati in support o f his contentions has placed reliance on the decision of the Apex Court in Janak irama Iyer & Ors. -vs- P.M. Nilakanta, AIR 1962 SC 633 and of this Court in Bolo Ram Paul & Ors. -vs- Digendrda Dutta & Anr., 2008 (4) GLT 928. In reply, Mr Choudhury has urged that as the counter claim sought to be registered by the opposite party/ defendant is based on a continuing cause of ac tion, the plea of limitation is untenable. The learned senior counsel, however, on instructions has pleaded, without prejudice to the rights and contentions of the opposite party/ defendant, that the application for amendment at this stage is not being insisted upon and he (opposite party/ defendant) be left to pursue his remedies otherwise available to him in law in this regard. Upon hearing the learned counsel for the parties and on a consideration of the arguments advanced, it is considered inessential to determine the issues on merit. Without, thus, offering any comment on the controversy raised, this pe tition is closed by setting aside the impugned order. It would be open for the o pposite party/ defendant to seek other remedies as may be available to him in la w vis-à-vis his counter claim as had been sought to be registered in the applica tion for amendment referred to hereinabove. It is made clear that this Court hereby has not acknowledged any legal r ight of the opposite party/ defendant vis-à-vis the counter claim as made and it would be solely within the discretion and jurisdiction of the legal forum conce rned to record its decision as and when the same is raised before it. The petition stands disposed in the above terms. No costs.