C.R. No. 2695 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2695 of 2010 Date of decision: 6.7.2010 M/s Sun Raj Software Private Limited ........ Petitioner Versus Shiv Dayal and another ........ Respondents CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA Present: Mr. Sumeet Goel, Advocate for the petitioner. Mr. Aman Pal, Advocate for the respondents. HEMANT GUPTA, J. (ORAL) Challenge in the present petition is to the order passed by the learned trial Court dated 24.12.2009, whereby an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the written statement and also to raise the counter claim was declined. The plaintiff-respondent No.1 has filed a suit of declaration (Annexure P-2) claiming joint possession by asserting that he has never appointed the defendant as his General Power of Attorney by way of any registered deed and has not authorized the said defendant to sell his share of land. The said suit was filed on 14.5.2002. In the written statement, the defendant-petitioner asserted that the plaintiff has executed a valid G.P.A. in favour of defendant and the said attorney has executed a sale deed on 3.5.2000. After the sale deed, mutation has also been sanctioned. Amendment in the written statement has been sought after the plaintiff concluded his evidence and also after two opportunities C.R. No. 2695 of 2010 -2- were availed by the defendant to lead its evidence. The defendant also sought to raise counter-claim so as to claim a decree for specific performance of the agreement dated 24.1.1996 and in the alternative decree for recovery of Rs.7,97,400/-, the amount allegedly paid to the plaintiff. By virtue of preliminary objection No.8; the defendant wanted to plead its detailed facts and circumstances leading to the execution of agreement to sell in favour of defendant No.2. Learned counsel for the petitioner vehemently argued that the reasoning given by the learned trial court in declining the counter- claim is not sustainable as it cannot be said that the relief claimed by the defendant is barred by limitation. It is also argued that by introducing the preliminary objection No.8, the petitioner wishes to explain the circumstances already pleaded by the petitioner in the written statement filed. Learned counsel for the petitioner has also relied upon an order dated 19.12.2008, passed by this Court in Civil Revision No. 5954 of 2006, whereby the defendant was allowed to amend the written statement in another case in similar circumstances. The petitioner seeks specific performance of agreement dated 24.1.1996, by way of amendment in the written statement. It was in pursuance of the said agreement, the sale deed was executed in the year 2000. The defendant has sought a decree for specific performance not only after three years of the execution of the sale deed but after three years of the filing of the present suit filed on 14.5.2002. As per Order 8 Rule 6 of the Code of Civil Procedure, the counter-claim raised at the time of filing the written statement has the same effect as the suit. Therefore, prima facie, the defendant-petitioner has to satisfy that the suit for specific performance would be within the period of limitation on the day when the application has been filed to raise counter-claim. In the absence of any explanation that the suit is within C.R. No. 2695 of 2010 -3- the period of limitation, the defendant-petitioner cannot be permitted to introduce the counter-claim by way of amendment in the written statement. In respect of the circumstances leading to the execution of the sale deed, the petitioner has already pleaded that the sale deed has been executed by General Power of Attorney. Still further the petitioner has sought amendment in the written statement after the trial has commenced. The plaintiff has concluded his evidence. The defendant has also been granted two opportunities to lead its evidence. In view of the above the petitioner cannot be permitted to amend the written statement at this stage. The order dated 19.12. 2008, relied upon by the petitioner does not refer to the amended provisions of Order 6 Rule Rule 17 inserted by Code of Civil Procedure (Amendment), Act 2002. Such amended provisions restricts the right to seek amendment in the written statement after the commencement of trial. Therefore, the said judgment is not helpful to the argument advanced by the petitioner. In view of the above, I do not find any patent illegality or irregularity in the order passed by the learned trial Court, which may warrant interference by this Court in the present revision petition. Dismissed. July 6, 2010 ( HEMANT GUPTA ) rishu JUDGE