HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 326 of 2010 (M/S) Jaiwant Singh Negi. ………..Petitioner Versus Man Mohan Singh and others. …….Respondents Shri Yogesh Pandey, Advocate for the petitioner. Shri V.K. Kohli, Senior Advocate assisted by Shri T.C. Pandey, Advocate for respondent no.10. Dated: June 2, 2010 Hon’ble V.K. Bist, J. This petition has been filed by the petitioner for quashing the order dated 25.01.2010 passed by learned Addl. District Judge/Vth F.T.C., Dehradun in Original Suit No. 376 of 2000 “Man Mohan Singh vs. Uma Devi and others”. It is also prayed in the petition that amendment application (paper no. 219-c) moved by the petitioner under Order-VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.) seeking amendment in his written statement for counter claim may be allowed. 2. Brief facts of the case, as narrated in the petition, are that father of the petitioner and respondent nos. 1,5,6,7 and grandfather of respondent no.2,3 & 4, namely Chander Singh Negi, purchased a property no. 73, Rajpur Road, Dehradun. The property consisting 33 Bigha, 14 Biswa is situated in Khasra no. 180 to 188 of Khata Khewat No. 15, Patti Karim Beg of Abadi, Karanpur Khas, Dehradun. Shri Chander Singh Negi died in the year 1964 leaving behind his wife Smt. Tulsi Devi, 5 sons, namely, Bir Vikram Singh (husband of respondent no.2 and father of respondent no.3 & 4), Sohan Singh (respondent no.5), 2 Mahendra Pratap Singh (died issueless in 1992), Manmohan Singh Negi (respondent no.1), Jaswant Singh Negi and 5 daughters, namely, Smt. Chandra Kala Rawat (married), Smt. Savitri Devi, Smt. Shakuntala Puri (respondent no.6), Km. Neeta Singh (unmarried died in the year 1987) and Km. Nisha Singh (respondent no.7). It is further stated that late Chander Singh executed a WILL on 09.11.1963 in respect of his property whereby he gave all his property to his five sons and no part of his property was given to his daughters in his immovable property except marriage expenses of his unmarried daughters. It is further stated that Mahendra Singh died unmarried in 1982, therefore entire undivided property vested in four sons. Thus, the petitioner is co-sharer of the property having ¼ share. The plaintiff (respondent no. 1 in the instant petition) and other defendants (respondent nos. 2 to 7 in the instant petition) wanted to grab the portion of the property falling in the share of petitioner, alleging that each of the heirs of late Chander Singh have 1/6th share in the property. It is further asserted that on the basis of a forged WILL, allegedly executed by the late Smt. Tulsi Devi and in collusion with the plaintiff, Smt. Shakuntala- (respondent no.6 in the instant petition) and Km. Nisha (respondent no.7 in the instant petition) have sold their alleged undivided 1/6th share in the property to respondent no. 8, 9 and 10. It is further stated that the respondent no. 1 instituted the Original Suit no. 376 of 2000 in the Court of Civil Judge (Sr. Div.), Dehradun seeking permanent injunction against the defendants that they may be restrained from selling any specific part of the property and also a decree for declaration of the WILL dated 27.09.1987 executed by Smt. Tulsi Devi, as null and void. In the above suit, the respondent nos. 8,9 and 10 3 moved application for their impleadment on the ground that respondent nos. 6 & 7 have sold their 1/6th share in the aforesaid property and they were impleaded as defendants in the above suit. The petitioner (defendant no.6 in the suit) and other defendants filed their written statement in the suit. It is stated in the petition that on 06.01.2010, the petitioner moved an amendment application (paper no. 219-c) under Order-VI Rule 17 of C.P.C. seeing amendment in his written statement for counter claim, to which the defendant nos. 8, 9 & 10 filed their objections. The learned Addl. District Judge, Dehradun vide order dated 25.01.2010 rejected the said amendment application. Hence this petition. 3. The petitioner/respondent no.6 filed written statement on 26.08.2008. Application under Order VI Rule 17 of C.P.C. was moved by the petitioner/ defendant no.6 on 06.01.2010 seeking following amendments in the written statement. “1- ;g fd izfrokn i= ¼isij la[;k 179 ,½ ds i`"B 19 ds iSjk 39 ds vafre iafDr esa 'kCn ßftudks 'kwU; o fu"izHkkoh ?kksf"kr-----lqjf{kr j[krk gSß] dks gVk fn;k tk;sA 2-;g fd rnksijkUr izfrokni= ds iSjk la[;k 39 ds ckn 40 dks dkV fn;k tk;s vkSj mlds LFkku ij fuEu iSjk ß40 o 41ß o ßvuqrks"kß lEcU/kh iSjk tksM+k tk;%& 40- ;g fd izLrqr dkmUVj Dyse ckcr iz’uxr lEifRr ds lEcU/k esa fd;s x;s mijksDr of.kZr ¼1½ fodz;Ik= fnukad 21-11-2006 tks izfroknh la[;k 4 }kjk v’kksd tSu ¼izfroknh la[;k 10½ ds i{k esa fd;k] ¼2½ fodz;i= fnukad 29-05-2006 tks fd izfroknh la[;k 1 ls 3 }kjk lat; vxzoky o v’kksd tSu ¼izfroknh la[;k 9 o 10½ ds i{k esa fd;k x;k ¼3½ fodz;i= fnukad 21-11-2006 tks fd 'kdqaryk flag] izfroknh la[;k 5 }kjk t; izdk’k vxzoky ¼izfroknh la[;k 8½ ds i{k esa fd;k ,oa ¼4½ fodz;i= fnukad 21-11-2006 tks fd fu’kk flag] izfroknh la[;k 7] }kjk t;izdk’k vxzoky ¼izfroknh la[;k 8½ ds i{k esa fd;k x;k] ds lEcU/k esa okn dkj.k ekuuh; U;k;ky; ds {ks=kf/kdkj nsgjknwu esa rc mRiUu gq;s tcfd mijksDr of.kZr fnukad ij izfroknh la[;k 1]2]3]4]5 o 7 4 }kjk mijksDr fodz;i= izfroknhx.k la[;k 8 ls 10 ds i{k esa vafdr o fu"ikfnr fd;s x;s ,oa rc mRiUu gqvk tcfd mijksDr fodz;i=ksa ds vk/kkj ij iz’uxr lEifRr esa izfroknh la[;k 8 ls 10 }kjk fof/k fo:) rjhds ls gLr{ksi dh /kedh nh x;h ,oa rc ls yxkrkj tkjh gSA 41- ;g fd {ks=kf/kdkj ,oa U;k;’kqYd dh vnk;xh dh n`f"V ls dkmUVj Dyse ckcr~ ?kks"k.kkRed fMdzh] mijksDr of.kZr fodz; i=ksa ds dqy fodz; ewY; eq0 ikWp djksM+ :Ik;s ¼yxHkx½ ij fd;k tkdj] ?kks"k.kkRed fMdzh dh ckcr~ mfpr U;k;’kqYd vnk fd;k tk;sxkA vuqrks"k%& ¼d½ ;g fd bl vk’k; dh ?kks"k.kkRed fMdzh izfroknh la[;k 6 ds i{k esa ikfjr dh tk;s fd mijksDr of.kZr fodz;i= fnukad 21-11-2006 nLrkost la[;k 1320] fodz;i= fnukad 29-05-2006 nLrkost la[;k 3711] fodz;i= fnukad 21-11-2006 nLrkost la[;k 1322] fodz;i= fnukad 21-11-2006 nLrkost la[;k 1320 'kwU; o fu"izHkkoh gSA 3- ;g fd izfrokn i= dh pj.k ds vafre Ik`"B esa ßlR;kiuß dh ikapoh iafDr esa vad ß37]38ß ds mijkUr vad ß40]41ß tksM+k tk;sA” 4. The respondent nos. 8 and 10 filed a counter affidavit before this Court in which area of the property and ownership of late Chander Singh is admitted. It is stated that Chander Singh expired leaving behind 5 sons and 5 daughters, out of which one son died unmarried. Another son Bir Vikram also died leaving behind his widow and two sons i.e. respondent nos. 2, 3 and 4. So far the daughters are concerned, it is alleged that one daughter was married during the lifetime of Chander Singh and two daughters were married after his death. One daughter died and one daughter is unmarried. Thus, there are 6 shareholders in the said property. It is stated in the counter affidavit that Smt. Shakuntala D/o late Chander Singh sold her 1/6th share in the property in dispute in favour of respondent no. 8 through registered sale deed dated 21st Nov., 2006 and Km Nisha also sold her 1/6th share to respondent no.8 through sale deed 5 dated 21st Nov. 2006. Similarly, respondent nos. 2 to 4 sold their 1/6th share to defendant nos. 9 & 10 through sale deed dated 29th May, 2006 and respondent no.5 sold his 1/6th share to respondent no.10 through sale deed dated 21st Nov., 2006. Thus, the defendant nos. 8, 9 & 10 have 4/6th share in the property in dispute. Out of the remaining 2/6th share, 1/6th share belongs to the plaintiff Shri Man Mohan Singh i.e. respondent no.1 in the present petition and 1/6th share belongs to the petitioner. It is stated that issues have been framed in the suit and cross- examination of the witnesses of the plaintiff was done on 25th March, 2009. Thereafter, on 27th January, 2010 the petitioner cross-examined the witnesses of the plaintiff and evidence of the plaintiff was closed. Now the suit is fixed for defence evidence. 5. I have heard Shri Yogesh Pandey, Advocate for the petitioner, Shri V.K. Kohli, Senior Advocate assisted by Shri T.C. Pandey, Advocate for respondent no.10 and perused the record. 6. Learned counsel for the petitioner submitted that the petitioner has ¼ share in the property in dispute and accordingly he moved an amendment application (paper no. 219-c) under Order-VI Rule 17 of C.P.C. seeking amendment in his written statement for counter claim by which he sought counter claim declaring the sale deeds executed by respondent nos. 6 & 7 in favour of respondent nos. 8,9 & 10 which have been executed without consent of other joint co-owners, as null and void. He argued that by the said amendment, nature of the suit will not be changed. He further submitted that if an issue is framed 6 in this regard as to whether sale deeds are valid or not, no harm will be caused to anybody. 7. On the contrary Shri V.K. Kohli, the learned Senior Advocate submitted that on 4th July, 2008 the Trial Court has farmed issue no. 6 in this regard and grievance of the petitioner will meet out at the stage when the Trial Court decides this issue. He further argued that the issue has been framed in between the plaintiff and defendants and no relief can be granted to any defendant against the other defendants in a particular suit and by way of allowing the amendment application, this is nothing but a futile exercise. He further argued that evidence of the plaintiff has been closed, the suit is fixed for defendants’ evidence and at this stage, the application of the defendant/petitioner under Order VI Rule-17 of the C.P.C. cannot be allowed. He referred Order VI Rule 17 of the C.P.C. and argued that amendment in pleading cannot be allowed after commencement of trial. Order VI Rule 17 of the C.P.C. is quoted below:- “17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 8. The learned Senior Counsel further submitted that as per the provisions of Order-VIII Rule 6(A) of C.P.C. a counter claim can be raised by the defendant against the 7 claim of the plaintiff before the defendant has delivered his defence or before the time limit for delivering his defence has expired. Order VIII Rule 6 (A) of C.P.C. is quoted hereunder:- “6A. 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 statement 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 rules applicable to plaints.” 9. Learned Senior Counsel argued that in view of clear cut provision in C.P.C., the petitioner, being defendant in the suit, cannot be permitted to raise counter claim against the defendant no.8. He placed reliance on the judgment reported in 2009 Supreme Court 1433 and (2009) 2 UAD-64. 10. The Hon’ble Apex Court in the case of Vidyabai & Ors. vs. Padmalatha and Anr., reported in AIR 2009 S.C. 1433 has observed that proviso of Order VI Rule 17 of C.P.C. restricts the powers of the Court. Para-14 of the judgment is reproduced below:- 8 “It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 11. In Rohit Singh Vs. State of Bihar-(2006) 12 SCC- 734, the Hon’ble Apex Court has also observed that counter-claim directed solely against the co-defendants cannot be maintained. Same is being quoted hereunder:- “Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co- defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter- pleader suit. Here, defendants 3 t0 17, had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial Court.” 12. In the suit five issues were framed on 08.10.2002. Additional issues were subsequently framed on 9 04.07.2008, 27.08.2008 and 06.10.2008. The Trial Court directed for cross-examination of the witnesses of the plaintiff on 12th October, 2009. But same was not done on 12.10.2009 though it was started on 4th December, 2002. The petitioner, thereafter moved an application under Order VI Rule 17 of C.P.C. on 06.01.2010 seeking amendment in the written statement. 13. From the above discussion, it is clear that proviso to order VI Rule 17 of C.P.C. puts an embargo on exercise of Courts power. Amendment application cannot be allowed after the trial has commenced. In the present case, the trial of the case has already started. Therefore, petitioner’s amendment application was rightly rejected by the Trial Court. Apart from this, from careful perusal of amendment application at appears that same has been moved for making a counter claim against co-defendant nos. 8 to 10, which cannot be allowed. 14. Consequently, the writ petition is dismissed. No order as to costs. (V.K. Bist, J.) 02.06.2010 NCM: