IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 111 of 2010 Mahant Krishna Giri, Chela of Late Mahant Vikram Giri, R/O 61/44, Sriman Mahesh Mahadev Ashram, Chandreshwar Nagar, Chander Bhaga, Rishikesh, District Dehradun. … Petitioner-Plaintiff. Versus Smt. Deepa Devi W/O Shri Govind Singh, R/O 61/44, Chandreshwar Nagar, Chander Bhaga, Rishikesh, District Dehradun. … Respondent-Defendant. Mr. S.K.Jain, Advocate, learned counsel for the petitioner. Mr. Lok Pal Singh, learned counsel for the respondent. Date April 05, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 5-10-2009 passed by Civil Judge (Senior Division) Rishikesh and the order dated 15-01-2010 passed by the Additional District Judge, Rishikesh, District Dehradun (annexed as Annexure No. 6 and 8 to the writ petition). By the order dated 5-10-2009, the application of the defendant-respondent for amendment of written statement was allowed on payment of cost of Rs. 500/-. By the order dated 15-1-2010, the revision filed by the plaintiff-petitioner before the revisional court was dismissed. The petitioner-plaintiff filed a suit in the court below for a decree of possession against the respondent-defendant. The defendant-respondent filed her written statement on 29-8-2006. The issues were framed in the suit on 24-4-2007. On 30-4-2009, preliminary issue no. 2 was decided by the trial court and the suit was listed for evidence of plaintiff fixing 3-7-2009. Subsequently on 7-7-2009, the suit was transferred to the court of Civil Judge (Senior Division) Rishikesh vide order dated 6-7-2009 passed by the District Judge, Dehradun. 2 It appears that after transfer of the suit to Rishikesh court, the defendant-respondent moved application paper no. 53-A for amendment of written statement on 17-9-2009 and by way of amendment, the defendant has sought the pleadings and relief of counter claim to be added in the written statement. The plaintiff- petitioner filed his objection against the amendment application mainly on the ground that the counter claim in so far as it relates to cancellation of sale-deed is barred by limitation. The learned Civil Judge (Senior Division) Rishikesh after hearing both the parties allowed the application for amendment of written statement subject to payment of cost of Rs. 500/- by his order dated 5-10-2009. Aggrieved by the order dated 5-10-2009, the plaintiff- petitioner preferred Civil Revision No. 79 of 2009 before the Additional District Judge Rishikesh (Dehradun), but the revisional court did not find favour with the plaintiff-petitioner and dismissed the revision by order dated 15-1-2010. The main ground of challenge raised in this writ petition is that the counter claim preferred by the defendant- respondent by way of amendment is barred by limitation. In the memo of writ petition, the following averments have been made:- “31. That in the present case however, claim having been filed beyond three years from the date of right to sue accrued is obviously time barred.” In the counter affidavit, filed in reply of the averments made in paragraph no. 31, the following averments have been made:- “27. That the contents of paragraph no. 31 of the writ petition as stated are not correct, hence denied.” The admitted facts of the case are that the plaintiff- petitioner filed the suit for possession against the defendant on 7-4- 2006 in the court of Civil Judge (Senior Division) Dehradun on the basis of registered sale deed dated 30-3-2000. Undisputedly, the defendant filed her written statement in the suit in that court as 3 early as 29-8-2006, wherein the defendant has denied the contents of paragraph no. 5 of the written statement and stated that it is wrong to say that the disputed property was sold in favour of the plaintiff by sale deed dated 30-3-2000. It is also not disputed that the counter claim has been preferred by the defendant by her application dated 17-9-2009, which clearly goes to show that the plea of cancellation of sale deed has been raised after more than six years of the execution of sale deed and even after more than three years from the date of filing of written statement i.e. on 29-8-2006. It can very well be held that the defendant must have procured knowledge of filing of the suit much before the filing of written statement in the court. The Apex Court in the case of Bollepanda P.Poonacha and another Vs. K.M. Madapa [(2008) 13 Supreme Court Cases, 179] had an occasion to consider the provisions of Order 8 Rule 6- A of the C.P.C. In paragraph No. 11 the Apex Court has observed as under:- “11. 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 had 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 arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of Ryaz Ahmed is based on the decision of this Court in Baldev Singh v. Manohar Singh.” In paragraph no. 15, it has been held by the Apex Court that a belated counterclaim must be discouraged. The Apex Court in the case of Gayathri Women’s Welfare Association v. Gowramma and Another [AIR 2011 4 Supreme Court, 785] has held that generally the counter claim not contained in the original written statement may be refused to be taken on record, especially if issues have already been framed. As mentioned above, the defendant-respondent had raised her defence as far back as 29-8-2006 and the counterclaim has been preferred by her only on 17-9-2009. It is thus crystal clear that the counterclaim for seeking the relief of cancellation of sale deed is highly belated and also barred by limitation. Having heard the submissions of the learned counsel for both the parties, following the ratio of the Apex Court judgment in the case of Bollepanda P.Poonacha and another (supra) and the case of Gayathri Women’s Welfare Association (supra), this Court is of the considered view that the defendant-respondent has made the counterclaim in respect of cancellation of sale deed quite belatedly. I have perused the amendment application moved by the defendant-respondent. Paragraph no. 22-R to 22-W and relief (Ka) mentioned in paragraph 30-A, which pertain to sale-deed dated 30-3-2000 and cancellation thereof should not have been allowed by the trial court, since the counterclaim sought for cancellation of sale deed is clearly barred by time. These paragraphs shall stand excluded from the amendment application. To that extent, the writ petition deserves to be partly allowed. The writ petition is partly allowed with no order as to costs. The impugned orders passed by the two courts below stand modified to the extent that the amendment application (paper no. 53-A) of the defendant-respondent stands partly allowed excluding paragraph 22-R, 22-L, 22-W and relief (Ka) mentioned in paragraph no. 30-A. Interim order dated 2-2-2010 is vacated. (B.S.Verma, J.) RCP