IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 30500 of 2007(E) -------------------------- PETITIONERS: ------------------- 1. DAINABI, W/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 2. U.V.ZUHARA, D/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 3. SAMEERA, D/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 4. U.V.SAFEENA, D/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 5. HANEEFA, S/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 6. ASHRAFF, S/O U.V.AHAMED, RESIDING AT KOTTACHERRY, BELLA VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.A.G.ADITYA SHENOY RESPONDENTS: ------------------- P.NARAYANAN, S/O KORAN, BUSINESSMAN BY PROFESSION, RESIDING AT CHERUVACHERRY, KADANNAPALLY P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 30500/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE PLAINT DT. 31/3/2001 IN OS NO. 114/2001 FILED BY THE PREDECESSOR-IN-INTEREST BEFORE THE MUNSIFF COURT, HOSDRUG. EXT.P2. COPY OF THE WRITTEN STATEMENT DT. 23/11/2001 BY RESPONDENT IN OS NO. 114/2001. EXT.P3. COPY OF THE IA NO.928/2004 DT. 7/4/2004 IN OS NO. 114/2001 BY RESPONDENT. EXT.P4. COPY OF THE JUDGMENT DT. 5/6/2007 OF THIS COURT IN WPC NO. 14443/2004. EXT.P5. COPY OF THE ORDER DT. 6/07/07 OF MUNSIFF COURT, HOSDRUG, IN IA 928/2004 IN OS NO. 114/2001. RESPONDENT'S EXHIBITS NIL. True copy tga M.N.KRISHNAN, J ===================== W.P.(C) No.30500 OF 2007 ===================== Dated this the 29th day of January 2008 JUDGMENT This writ petition is filed seeking to set aside the order of the Munsiff's Court, Hosdurg in I.A.No.928/2004 in O.S.No.114/2001. The said application is one for amendment of the written statement under Order 6 Rule 17 C.P.C. The plaintiff has instituted a suit for realisation of the amount and the defendant, who is the petitioner has filed a written statement raising the contention that he is entitled to much more amount from the plaintiff and he intends to file a separate suit for realisation of the same. Thereafter the petitioner, viz., the defendant filed an application for amendment of the written statement, whereby he wanted to set up the case of a counter claim. It was strongly opposed by the other side, viz., the plaintiff on the ground that the relief sought to be incorporated in the form of a counter claim is barred by limitation and therefore the court should not allow the application for amendment. The court, on a consideration of the materials and relying on the decision of this Court reported in Sabhari Syndicate v. Catholic Syrian Bank Ltd.(2001(1) KLT 646) held that even if Wp(C) 30500/2007 -:2:- the counter claim is barred by limitation as on the date of filing of the application, it can be allowed. It is against that order the present writ petition is filed. 2. Learned counsel for the petitioners had brought to my notice two decisions: one by a single Judge of this Court in Gwalior Rayons Silk Mfg. Co.Ltd., v. Ramadas(1987(2) KLT 1035) and another by the decision of the Apex Court in Mahendra Kumar and another v. State of Madhya Pradesh and others(1987) 3 SCC 265). In the decision reported in 1987(2) KLT 1035, it is held that “when written statement already filed is allowed to be amended by adding a counter-claim the amendment also takes effect as on the date of the original written statement. That means if the claim was not barred on the date of the original written statement but barred on the date when the amendment was sought for or allowed, the defendant is thereby getting a successful opportunity of overcoming the plea of limitation and the plaintiff is put to the prejudicial position of being negatived of the right of that plea”. 3. Learned counsel for the respondent had relied on a decision of this Court reported in 2001(1) KLT 646, where the court was dealing with a similar situation. This Court held that amendment of a written statement cannot be denied on the ground that the claim is barred by limitation on the Wp(C) 30500/2007 -:3:- date of application for amendment. This Court also held that filing of counter claim by defendant after filing of written statement is not barred. A close reading of that decision will indicate that the person who sought to incorporate the plea of counter claim has preferred a claim before the consumer forum and on account of the non-maintainability had rushed to the civil court in answer to a plaint. Then this Court held that when the basic foundation of the claim is laid then there is no bar in granting an amendment to the written statement by way of incorporating a counter claim. This question has come up for consideration before the Apex Court in the decision reported in (1987) 3 SCC 265. The Apex Court held that a counter claim filed within three years from the date of accrual of right to sue is not barred or in other words, it means that a counter claim also has to be filed within the period whereby the cause of action to institute a suit does not assist to exist on account of limitation. It is a well settled principle as seen from Order VIII Rule 6-A(4) C.P.C that the counter claim is to be treated as a plaint. Under the provisions of the Limitation Act, a plaint has to be instituted within the statutory period. Counter claim is only a cross plaint. Therefore, the law of limitation is equally applicable to the said claim as well. Therefore, the defendant in a suit cannot be permitted to by- pass the law of limitation and incorporate a plea by way of an additional Wp(C) 30500/2007 -:4:- amendment of the written statement raising a counter claim with respect to a barred claim under law. So far as this case is concerned, the defendant was fully conscious and aware of his entitlement to raise the plea even at the time of filing of the original written statement. He had explicitly made clear in the written statement that he will be taking separate legal action by institution of a suit to realise the said amount. Thereafter he keeps quite and when the suit is listed and the plaintiff tenders his chief affidavit an application for amendment of the written statement is filed with a prayer to incorporate a counter claim. In the light of the decision of the Apex Court referred to above such a plea cannot be entertained when it is actually barred by limitation. The said decision was not brought to the notice of this Court while deciding 20001(1) KLT 646. It has also to be held that in any amendment, the most crucial aspect to be looked into is the bona fide of a person making the application. When he is fixed with the knowledge of such a claim and he allows it to wither away by not taking any steps and then when he finds it difficult to file a suit he comes with application to amend the written statement. This shows his total lack of bona fides. Therefore, I am not in agreement with the decision of the learned Munsiff, who allowed the application for amendment of the written statement to incorporate a counter claim. Therefore, the writ petition is Wp(C) 30500/2007 -:5:- allowed. The order under challenge is set aside and I.A.No.928/2004 stands dismissed. I make it clear that if another amendment other than to add a counter claim is filed it may be considered separately and appropriate orders passed after hearing both sides. M.N.KRISHNAN, JUDGE Cdp/-