IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 649 OF 2007 SHRI. NAMDEVA VISHNU SALGAONKAR (EXPIRED) THROUGH LR'S ... Petitioner Versus MR. JAYBAHADUR THAPA AND ANR., ... Respondents Mr. Coelho Pereira, Sr. Advocate with Mr. S. Karpe, Advocate for the Petitioners. Mr. S.D. Lotlikar, Sr. Advocate with Ms. S. Mordekar, Advocate for the Respondents no.1 and 2. Coram:- R. C. CHAVAN, J. Date:- 13th August, 2008 ORAL ORDER The plaintiff in Special Civil Suit No.67/1998 before the learned Civil Judge, Senior Division, Mapusa is before this Court, questioning an Order passed by the learned Civil Judge, permitting defendant no.2 to raise a counter-claim almost after the trial was over and final arguments were advanced. 2. The plaintiff filed a suit against defendant no.1 for recovery of possession of suit premises. One Vidhyadhar Vithal filed an application for being impleaded as defendant no.2. He claimed to have been in possession of the property in pursuance of an agreement of sale. He raised such a defence by filing a written statement on 27.9.1990. The plaintiff applied for amendment of the plaint on 19.4.1995 in order to raise pleas pertaining to agreeement set up by the defendant no.2. The plaintiff sought by this amendment to deny the agreeemnt of sale with defendant no.2 as also that any amount had been received in pursuance of such agreement. This amendment was granted by the learned Trial Judge on 9.2.1995. The plaintiff however did not carry out amendment. The learned Counsel for the petitioner submitted that though the amendment was not carried out, in fact a copy of amended plaint was placed on record, but could not state as to when such copy was placed on record. He submitted that only clerical act of physically carrying out the amendment remained to be executed. All the same it seems that the amendment was not actuallly carried out. By an Order dated 1.12.2007, the trial Court permitted the plaintiff to carry out the amendment in the plaint by enlarging the time which had lapsed. This amendment was actuallly carried out on 1.12.2007. On the 5th December, 2007 the defendant no.2 filed the application, on which the impugned Order has been passed, seeking the amendment to the written statement, incorporating counter-claim, whereby he sought decree of specific performance of agreement of sale. This amendment was opposed by the plaintiff contending that the amendment was barred by limitation, that it would take away valuable right accrued to the plaintiffs, that it was intended to fill the lacuna detected after the plaintiff finally argued the matter, and that it would cause such prejudice which could not be compensated in money. After hearing the parties the learned Trial Judge allowed the amendment and entertained the counter-claim by impugned Order. Aggrieved thereby the plaintiff has filed this petition. 3. I have heard the learned Senior Counsel Shri Pereira for the petitioner and Shri Lotlikar for the respondents. It may be seen that the plaintiff was required to raise the plea denying agreement of sale in favour of the defendant no.2 only after the defendant no.2 raised such a defence. As defendant no.2 was not a party to the suit as originally filed, there was no question of the agreement of sale in favour of defendant no.2 being a subject matter of the suit. Till the plaintiff sought amendment, there was no question of defendant no.2 imagining that the agreement of sale which he had set up was repudiated by the plaintiff. Such repudiation came to the knowledge of the defendants only after the application for amendment was filed by the plaintiff. 4. It is true that the amendment was granted by the Court by Order dated 9.2.1995. Such amendment ought to have been carried out within two weeks from the date of Order. But it cannot be disputed that the amendment was not actually carried out till 1.12.2007. A party may, inspite of leave to amend, not actually carry out the amendment, and may even give up such pleas. Therefore till such amendment was actually carried out, there was no occasion for the respondent no.2/original defendant no.2 to respond to these pleas. Yet, the learned Counsel for the petitioner points out that the defendant no.2, in fact filed an additional written statement at Exbt.8 which is at page 31 of the paperbook, denying the pleas sought to be raised in para 11(a) and 11(b) of the plaint. He therefore submitted that irrespective whether the plaintiff had carried out amendment or not, the entire defence of the defendant no.2 had been delivered by additional written statement dated 19.4.1995. The learned Counsel for the petitioner has a two fold objection to the amendment whereby counter-claim is sought to be incorporated. First is that by para 21 of the proposed amendment defendant no.2 stated that the cause of action for the counter-claim arose on 1.12.2007. Thus on defendant no.2's own reckoning cause of action arose after the entire defence was delivered by 19.4.95. Therefore, in view of provisions of Order 8 Rule 6A C.P.C., since the cause of action accrued after the delivery of defence, the learned Civil Judge should not have entertained the counter-claim. The expression used in Clause 1 of Order 8 Rule 6 A C.P.C may usefully reproduced as under: "Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not; Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statment in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rule applicable to plaints. 5. There are no doubts as to intepretation of this rule and it has been settled that a defendant is entitled to make a counter-claim even after the delivery of defence, provided the cause of action for the same has accrued before its delivery. 6. The other objection of the learned Senior Counsel for the petitioner is that the cause of action having accrued upon receiving knowledge of denial of agreement of sale way back in 1995, the defendant no.2 could not have claimed the relief of specific performance of alleged agreement of sale in December, 2007 almost 12 years after such knowledge. The learned Counsel submitted that this claim was hopelessly time barred. 7. On the other hand, the learned Senior Counsel for the respondent no.2 submitted first, that unless an amendment is actually carried out it would be reasonable for the party to infer that the amendment was not pressed. Since such plea was not raised, and the amendment was not carried out, it was reasonable for the respondents to believe that there was no repudiation of the agreement by the plaintiff. He further submitted that since the plaintiff had not carried out amendment, the defendants' filing additional written statement at Exbt.8 was really immaterial, since it was filed in response to the pleas which had not yet been taken. Therefore according to him, the time for delivery of defence would arise only after the defendants were required to respond to the pleas taken by the plaintiff, which pleas the plaintiff took only on 1st December, 2007. He further submitted that the question as to whether the plea is barred by limitation is one which would have to be decided after considering the evidence tendered. Since, according to him, till the amendment was carried out there was no repudiation of the defendants' right to purchase the property, and since the defendant no.2 had a reason to believe that the plaintiff had not pressed the plea of denying the agreement of sale till 1.12.2007, even this limitation had not expired. Therefore, according to him, the cause of action for making a counter-claim and seeking relief of specific performance of agreement of sale had arisen only upon the amendment which the plaintiff carried out on 1.12.2007. The defendant noticed the repudiation of these pleas only on 1.12.2007 and had promptly raised counter-claim by his application dated 5.12.2007. Therefore according to him, since the time to deliver defence had not at all expired when the cause of action for raising a counter-claim arose, Clause 1 Order 8 Rule 6A of C.P.C. does not bar this counter-claim. 8. The learned Senior Counsel for the respondents is right in submitting that unless amendment is actually carried out there will be no occasion for the defendant to respond to the pleas raised. Therefore, as rightly submitted, a party may seek an amendment but actually, not carry out amendment and may even give up such pleas. Therefore additional written statement at Exbt.8 dated 19.4.1995 cannot be said to have resulted in completion of delivery of defence by defendant no.2. The occasion for delivery of defence to the amended pleas arose on 1.12.2007 and the defence to these pleas was raised on 5.12.2007, whereby counter-claim was also made. Therefore provisions of Order 8 Rule 6A C.P.C. would not come in the way of entertaining this counter-claim. 9. As to the plea of limitation, it would have to be decided in the light of evidence that may be tendered, and it would be open to the parties, notwithstanding any observations in this Order, to impress upon the Trial Court that the limitation had, or had not, expired with reference to the date of knowledge of the denial of agreement of sale from which the limitation would commence. 10. The learned Senior Counsel for the petitioner rightly submitted that the question as to whether the counter-claim may be entertained or not is a matter in the discretion of Court. He submitted that this counter-claim was raised was at the fag end of trial after substantial part of arguments were advanced. He submitted that the defendant no.2 has taken the benefit of technical lapse on the part of the plaintiff in omitting to carry out the clerical act of carrying out amendment in the plaint. According to Senior Counsel if the defendant no.2 had the right to seek specific performance of agreement of sale, he could do so by a separate suit. Therefore he submitted that the Trial Judge should not have exercised the discretion and should have refused to entertain the counter-claim. 11. It may be true that the defendant no.2 has taken a advantage of technical lapse on the part of plaintiff. All the same, as far as exercise of discretion is concerned, rather than pushing the parties to filing a suit, which would be defended, contested and taken through heirarchy of Courts for number of years, the learned Trial Judge has rightly entertained the claim, so that all questions arising between the parties are considered once for all. Therefore the impugned Order does not call for any interference in exercise of writ jurisdiction by this Court. The petition is dismissed with no order as to costs. The learned Trial Judge shall in the circumstances endeavour to dispose off the suit within a period of six months from the date of this Order. 12. The learned Senior Counsel for the petitioner apprehends that this may be used to fill up the lacunas which have been exposed by the cross examination of witnesses thus far. This may be set at rest by observing that such attempt may only expose of this party to the risk of being disbelieved by making the statement which may be contradictory. Interim stay stands vacated. The parties shall appear before the Trial Court on 20.08.2008 at 10.30 a.m. R. C. CHAVAN, J. cg