Kimberley Pereira vs Mario Pereira

Smt. R.P. Sondurbaldota, J.—Rule. Rule made returnable forthwith. By consent of the parties, the petition is taken up for hearing immediately.

The order of the Family Court impugned in this writ petition rejects the application of the petitioner-wife to amend her written statement for including counterclaim therein. The application had been filed more than two years after filing of the written statement. The respondent-husband had opposed it on the grounds of i) delay, ii) it being barred by 0rder 8, Rule 6A CPC and iii) it being unnecessary for the purpose of determining the real controversy between the parties. The Family Court rejected the application holding that it was not made within time and that it gave rise to a new cause of action. The Court was of the opinion that serious prejudice would be caused to the respondent-husband if the proposed amendments were allowed.

The parties profess Christian religion. The respondent has filed petition for divorce u/s 10(1)(ix) and (x) of the Indian Divorce Act. The petitioner filed her written statement on 21st December, 2006. Thereafter, on 8th April, 2009 she filed the application at Exhibit21 for amendment of the written statement to include counter claim therein. By way of counterclaim, she proposed to seek divorce under the same grounds i.e. the grounds provided u/s 10(1) (ix) and (x) of the Indian Divorce Act and for possession of the flat standing in her name. She also seeks an injunction to restrain the respondent-husband from creating third party interest in the flat in question.

The petitioner is an employee of the Indian Airlines and as such is a member of Sea View Cooperative Housing Society Limited, Malwani, Marve Road, Malad (West) formed by the employees of Indian Airlines in respect of Flat No.1 on the ground floor of the society building. She contended in her application that during the counseling session in the Family Court, she learnt that the respondent has started residing in the flat at Malad without her knowledge and consent. When her repeated requests to him to vacate the flat fell on deaf ears, she apprehended that he may dispose off the flat to cause irreparable loss to her. She therefore sought to file counterclaim seeking direction to him to vacate the flat at Malad and also for a permanent injunction to restrain him from creating any third party rights over the same.

Mr. Lalwani, the learned counsel for the petitioner submits that the impugned order is not only harsh and unreasonable, but also contrary to well settled principles with regard to amendment of pleadings. He submits that since the Family Court has jurisdiction to decide the disputes relating to the properties of the parties to the marriage or either of them, rejection of the application would lead to multiplicity of the proceedings as the petitioner would be required to file a separate proceeding to claim the said reliefs.

Per contra, Mr. Fernandes, the learned counsel for the respondent, at the outset, objects to the maintainability of the petition, submitting that no writ petition can be filed under Article 227 of the Constitution of India. According to him the present petition termed as "writ petition" filed under Article 227 of the Constitution of India, is not maintainable. To support his submission, Mr. Fernandes relies upon unreported decision of the Apex Court dated 23rd July, 2010 in Civil Appeal No. 5896 of 2010, Shalini Shyam Shetty & another V/s. Rajendra Shankar Patil. Perusal of the present petition and the decision cited by Mr. Ferandes will show that there can be no substance in the objection to the maintainability of the petition and the reliance upon the decision cited is misplaced. A brief reference to the facts of the proceedings before the Apex Court will be required for appreciating the argument advanced. The appellant before the Apex Court was the original defendant in the suit for eviction filed by the respondent-landlord on the ground of breach of terms of tenancy, causing damage to the property, and causing nuisance and annoyance to the landlord and other occupants. The Small Causes Court, Mumbai decreed the suit directing the appellant to hand over vacant and peaceful possession of the demised premises to the landlord. An appeal was preferred against this order. The first appellate Court vide its order, partly allowed the appeal. It confirmed the trial Court''s judgment on the ground of causing waste and damage as contemplated u/s 16(1)(a) of the Maharashtra Rent Control Act, but, set aside the findings of the trial Court on the grounds of nuisance and annoyance. The appellant then moved the High Court with a prayer to issue a writ of certiorari and/or any other writ, order or command and call for the papers and proceedings from the lower Courts. The High Court dismissed the writ petition only on the ground that against the concurrent finding of facts of the Courts below the exercise of writ jurisdiction is not warranted. The Apex Court noted that the High Court had not considered the question of maintainability of the petition before it. It noticed that the petition filed before the High Court was a pure and simple writ petition complete with all the features of a writ petition. It sought writ of certiorari and contained relevant mandatory averments in the petition. Since the dispute in the petition related to pure dispute of landlord and tenant i.e. between the private parties, the petition was held not maintainable.

The present petition does not contain any of the features of a "writ petition". It neither seeks any specific writ nor contains relevant averments mandatory for a "writ petition". It is only labeled as a "writ petition" in view of the provisions in Rule 2B, Chapter 1 of Bombay High Court (Appellate Side) Rules 1960 and is in fact an application under Article 227 Constitution of India.

Mr. Fernandes then relies upon the same decision for the scope of interference by the High Court under Article 227 Constitution of India. The observations relied upon read as follows :

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ''within the bounds of their authority''.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been floated.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words, the jurisdiction has to be very sparingly exercised.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

There can be no dispute about the above principles laid down for exercise of it''s power of superintendence by the High Court. It is therefore only required to be seen whether the facts of the present case are covered by the above principles.

The impugned order notes the argument of the respondent that the counterclaim is barred by limitation but does not consider the same. It instead holds that the application for amendments, is not within time. The only discussion on this aspect which is at paragraph 3 of the order reads as under:

The respondent has stated that the flat was purchased in 1992 and she learnt during the counseling session of this petition that the petitioner is residing in the said flat though the flat stands in her name. If it was the case, the respondent should have immediately filed the amendment application. In my opinion, the proposed amendment is very much belated. (sic) I am well aware that there are catena of judicial decisions that amendment can be allowed at any stage. However, it must be shown that the proposed amendment is made without inordinate delay.

Unfortunately the order is seen to contain no reasons for holding that the application for the proposed amendment is not made within time. The order does not even mention what was the time within which the application for amendment ought to have been filed. It does not state what would be the prejudice caused to the respondent by the delay in filing the application and by the amendments proposed.

Mr. Fernandes, seeks to justify the observations of the Family Court by submitting that the counterclaim is barred by Order VIII, Rule 6A, Code of Civil Procedure. The submission is unacceptable since the provision does not provide for limitation for filing counterclaim. The relevant part of the provision of Order VIII, Rule 6A reads as follows :

6A. Counterclaim by defendant.( 1) A defendant in a suit may, in addition to his right of pleading a setoff under rule 6, set up, by way of counterclaim 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 counterclaim is in the nature of a claim for damages or not:

Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court

The time or the period prescribed in the provision relates to accrual of cause of action for the counterclaim. It has nothing to do with the timing for raising the counterclaim. It provides that the cause of action for counterclaim must have accrued either prior to filing of the suit or after filing of the suit, but before either delivery of defence or expiry of time for delivery of defence by the defendant. Where cause of action to file counterclaim has so arisen, the counterclaim can be filed even subsequent to filing of the written statement. Order VIII, Rule 6A does not bar filing of counterclaim even after filing a written statement. It is well established that a counterclaim is in effect a cross suit and is required to be decided in the same manner as a suit. It is therefore undoubtedly subject to a period of limitation. The period of limitation for it is prescribed not under Order VIII, Rule 6A Code of Civil Procedure, but under Article 113 of the Limitation Act, 1963. Since there is no period of limitation specifically provided for filing counterclaim in the schedule to the Limitation Act, it would be governed by the residuary clause at Article 113. The period provided under Article 113 is of three years from the date of accrual of the cause of action.

The petitioner filed her written statement on 21st December 2006. A month prior to that i.e. on 21st November 2006 she had filed an application for interim relief seeking direction to respondent to vacate the flat in question and to prevent him from creating third party rights over the flat. A copy of that application is produced before this court by the respondent. In that application also at paragraph 9, the petitioner has claimed that she learnt about the occupation of the flat by the respondent during the counselling session in the court. This would mean that the cause of action had accrued to the petitioner within the period provided in Order VIII, Rule 6A Code of Civil Procedure. She can file counterclaim at anytime within three years from the date of knowledge. Since the date of knowledge would be a matter of evidence, the Family Court ought to have allowed the application and considered the question of limitation to file counterclaim at trial by framing an issue therefor. The counterclaim being in the nature of crosssuit, it could have been filed even on the last date of limitation. The application to file it could not have been dismissed on the ground of delay. Such dismissal is gross and manifest failure of justice.

The Family Court has also observed that serious prejudice will occur to the respondent if proposed amendment is allowed and the amendment gives rise to a new case. The Family Court lost sight of the fact that the amendment of the written statement sought was only to include the counterclaim therein. For entertaining a counterclaim, question of the same giving rise to a new case does not arise. Similarly no question of any prejudice being caused to the respondent will arise. Mr. Lalwani submits that in any case amendment of pleadings can never cause prejudice or irreparable injury to any party. In support, he relies upon following observations of the Apex Court in it''s decision in Prem Bakshi and Others Vs. Dharam Dev and Others, .

Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent no.1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence, we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party.

The impugned order amounts to grave miscarriage of justice and cannot be sustained. Hence, Rule is made absolute. The petition is allowed in terms of prayer clause (a).