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Judgment
F.M. Reis, J.—Heard Shri V.A. Lawande, Learned Counsel appearing for the petitioner and Shri A. N. S. Nadkarni, learned Senior counsel appearing for the respondents.
Rule, heard forthwith by consent of learned
Shri P. Rao, Learned Counsel waives service on
The above petition challenges the judgment and order passed by the learned Appellate Court dated 26.04.2011 whereby an application filed by the petitioner for producing an additional written statement along with counter claim as well as the application for amendment came to be disposed of whereby the learned Judge has permitted the petitioner for filing of additional written statement but however refused to consider the filing of the counter claim as well as the amendment to the written statement as sought to be introduced by the petitioner.
Shri V. Lawande, Learned Counsel appearing for the petitioner has assailed the impugned judgment and pointed out that the learned Judge has refused to allow the filing of the counter claim essentially on the ground that this Court whilst allowing the application for amendment filed by the respondents had restricted the petitioner only to file a written statement to such pleadings. The Learned Counsel further pointed out that by the counter claim, the petitioner desires to claim that they are the permanent lessees of the suit property and consequently went to seek a declaration to that effect. The Learned Counsel has taken me through the impugned judgment and pointed out that there is no bar for the petitioner to file a counter claim as according to him the counter claim became necessary due to the pleadings introduced by the respondents. The Learned Counsel as such submitted that the impugned judgment refusing the introduction of the counter claim deserves to be quashed and set aside.
As far as the rejection of the amendment application filed by the petitioner, Shri V. Lawande, the Learned Counsel appearing for the petitioner has pointed out that by the amendment application, the petitioner desires to raise the contention to the effect that during the pendency of the suit, the respondents had already transferred the suit property and according to him, the legal heirs were brought on record upon the death of the original respondent by fraud. The Learned Counsel further pointed out that such pleadings are required to be introduced in view of the stand taken by the petitioner to the effect that the respondents have no subsisting right over the suit property and as such the respondents are not entitled to proceed with the suit. The Learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside.
Shri A. N. S. Nadkarni, learned Senior Counsel appearing for the respondents has supported the impugned judgment. The learned Senior Counsel has pointed out that whilst filing additional written statement in answer to the additional pleadings introduced by the petitioner, the petitioner are entitled only to meet the contention of such additional pleadings. The learned Senior Counsel further pointed out that by filing a counter claim, the petitioner are travelling beyond the right reserved to the petitioner to file an additional written statement as permitted by this Court. The learned Senior Counsel further pointed out that there is no justification for the petitioner to introduce the counter claim as such counter claim is not referable to the additional pleadings introduced by the respondents to the plaint. With regard to the contention of Shri Lawande to the effect that the amendment application filed by the petitioner also came to be rejected, the learned Senior Counsel pointed out that such amendment is not at all necessary for the purpose of deciding the alleged contention raised by the petitioner as according to him, the amendment in fact only draws an inference on the basis of the record in the suit. The learned Senior Counsel further pointed out that in fact the assignment executed by the respondents has already been produced by the petitioner in their cross examination which becomes part of the record and any inference if any on the basis of the records of the proceedings can always be drawn by the petitioner at the final stage of the suit and as such no amendment is necessary for the said purpose. As such, the Learned Counsel submitted that there is no case made out for interference in the impugned judgment.
Having heard the Learned Counsel for the parties and on perusal of records, I find that the learned Judge was justified to refuse the introduction of the counter claim as sought to be introduced by the petitioner. As rightly pointed out by learned Senior Counsel appearing for the respondents, such counter claim is not referable to the additional pleadings sought to be introduced by the petitioner but however the defence sought to be introduced by the petitioner to the effect that the petitioner are permanent lessees of the suit property can be part of the additional written statement filed by the petitioner. Shri V. Lawande, Learned Counsel at this stage upon instructions points out that paragraph nos. 9 and 10 at page 60 of the paper book be treated as part of the additional written statement. The paragraph nos. 9 and 10 of the page 60 which were part of the original counter claim shall be considered to be part of the additional written statement filed by the petitioner. The petitioner shall not be entitled to introduce the counter claim as sought to be introduced but however the said paragraph nos. 9 and 10 shall be treated as part of his additional written statement. The remaining paragraphs from 11 onwards shall not be treated as part of the pleadings filed by the petitioner. In view of the introduction of the said pleadings, the learned Judge shall consider as to whether any additional issue arises in the pending proceedings and decide as to whether any further evidence is required to be adduced by the parties in accordance with law. As far as the dispute with regard to the amendment to the written statement, I find that considering the submissions of the learned Senior Counsel that inferences on the basis of the records of the proceedings can always be drawn by the party at the time of the final arguments, the proposed amendment sought to be introduced by the petitioner is not at all necessary for the purpose of adjudicating the matter in controversy. Subject to above, I find that no case is made out for any interference in the impugned judgment.
In view of the above, I pass the following:
ORDER
(i) Impugned order dated 26.04.2011 is modified and said paragraph nos. 9 and 10 shall form the part of the additional written statement filed by the petitioner.
(ii) The remaining part of the judgment and order stands confirmed.
Rule in above terms with no order as to costs.
Petition stands disposed of accordingly.