IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No.432 of 2009 Date of Decision : November 26, 2009 Rajesh Kumar Talwar …..Petitioner-defendant. Versus: Balkar Singh …Respondent-plaintiff. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Sanjay Jaswal, Advocate. For the respondent: Mr. Vikas Bhardwaj, Advocate Sanjay Karol, J. (Oral) This petition under Article 227 of the Constitution of India has been filed by the defendant, assailing the impugned order dated 25.4.2009 (Annexure P-6) passed by the Civil Judge (Sr. Division), Kangra, H.P., whereby his application filed under Order 6 Rule 17 CPC stands rejected. On 8.12.2005, the plaintiff (respondent herein) filed a suit for recovery of a sum of Rs.3,20,000/- against the defendant (petitioner herein). On 4.10.2004, the partied entered into an agreement whereby the defendant sold his vehicle to the plaintiff subject to certain terms and conditions contained therein. The defendant filed his written statement on 23.10.2007, disputing the plaintiff’s claim. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 On 28.7.2008, the defendant filed an application under Order 6 Rule 17 CPC, for amendment of the written statement, essentially seeking to file a counter claim for a recovery of a sum of Rs.1 lac against the plaintiff. The application was hotly contested by the plaintiff and was dismissed in terms of the impugned order. The Court below rejected the application for the reason that (i) no sufficient cause had been disclosed for not incorporating the counter claim in the written statement, (ii) ; the period of limitation for seeking the relief had expired, (iii) keeping in view the provisions of Order 8 Rule 6-A CPC, the stage of filing the counter claim was over. Heard learned counsel for the parties. In T. N. Alloy Foundry Co.Ltd. vs. T. N. Electricity Board & Ors. 2004 (3) SCC 392, the Apex Court by relying upon its earlier decision in L. J. Leach and Co.Ltd. v. Jardine Skinner and Co., AIR 1957 SC 357 has held that as a rule the Court would decline to allow the amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it. In Bollepanda P. Poonacha & Anr. vs. K. M. Madapa 2008 (13) SCC 179, the Apex Court has held that a belated 3 counter claim must be discouraged although in some cases it may be allowed. Grant of relief would depend upon the factual background involved in each case. A right to file counter claim 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 has raised his defence. The Court, undoubtedly would take into consideration the questions of serious injustice or irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings are not available as a matter of right under all circumstances. The Court, must exercise its wide discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. The Apex Court in Mahendra Kumar vs. State of M.P. & Ors. 1987(3) SCC 265 has held that a counter claim can be filed even after filing of the written statement. This Court in Ram Swaroop vs. Mandir Thakran Kalyan Rai AIR 2002 HP 27 has held as under:- “Where cause of action for filing counter claim arose before filing written statement, an application for amendment of written statement so as to add the counter claim was not liable to be dismissed on ground that it was filed after filing of written statement. Filing of counter-claim after filing of the written statement is not barred if the cause of action for the counter-claim had arisen before the filing of 4 the written statement . However, in a case where the cause of action to file counter-claim arises after the filing of the written statement, the defendant is debarred from filing the counter-claim.” Hence, the reason No. 3 furnished by the Court below in rejecting the application is not based on correct appreciation of the provisions of law. This Court in Jeet Ram Kishore & Ors. vs. Sunder Singh Latest HLJ 2004 (HP) 582 has held that after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the parties could not raise the matter before the commencement of the trial, the Court should not exercise its discretion in a capricious and arbitrary manner. The Apex Court in Pirgonda Hongonda Patil v. Kalgonda Shidonda Patil & Ors. AIR 1957 SC 363 has held that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused, as to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. 5 The ultimate test is as to whether the amendment can be allowed without injustice to the other side or not? {Swaran Singh v. The Punjab Kesari & Ors. Latest HLJ 2001 (HP) 468}. In the instant case the counter-claim was hopelessly barred and a valuable right had accrued in favour of the plaintiff. The aforesaid principles apply to the instant case in equal force. It is evident that the orders passed by the Court below cannot be interfered with in the absence of any justifiable explanation. Except pleading inadvertence as to why the counter claim was not initially filed along with the written statement, nothing has been shown. Undoubtedly, in the present case the trial had commenced as the plaintiff had led evidence in support of his case. Considering the matter in entirety, I find no merit in the present petition, which is dismissed. ( Sanjay Karol ), Judge. November 26, 2009. (rana)