Moinul Haq and Others vs IIIrd Addl. District Judge and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

This writ petition is directed against the order dated 24.1.1990 passed by II Ird Additional District Judge, Basti in Civil Appeal No. 27 of 1988. Through the said order application of Defendant-Petitioner, who is Appellant in the aforesaid appeal, seeking amendment in the written statement has been rejected, hence this writ petition.

The only explanation given for not taking the pleas which were sought to be added through amendment in the written statement was that due to oversight the said pleas could not be taken in the original written statement. Learned Additional District Judge has rightly held that such types of pleas could not be overlooked in case the Petitioner had intended to take the said pleas at the time of filing of the initial written statement. Both the parties adduced evidence and thereafter the suit was decreed.

In the plaint of the suit, which was filed for setting aside an auction sale, it had been stated that before auction no attachment was effected. Original Defendant examined himself as D.W. 1 and in his oral statement he admitted that before auction house in dispute was not attached. One of the pleas sought to be added through amendment in the written statement was to the effect that before auction house in dispute was attached. In the original written statement no such plea was taken. In view of admission of original Defendant such plea could not be permitted to be added in the written statement.

Through amendment counter-claim for possession was also sought to be added in the written statement. By no stretch of imagination counter-claim can be permitted to be filed at the appellate stage. Under Order VIII, Rule 6A, Code of CPC it is provided that a Defendant can file counter-claim against the claim of the Plaintiff before the Defendant has delivered his defence or before the time limited for delivering his defence has expired. The Supreme Court while interpreting the said Rule has held that even after filing of written statement counter-claim can be filed. However, it has also been held that counter-claim can be permitted to be filed only uptill the stage when written statement could be filed. After conclusion of the evidence of both the parties there is no question of filing any counter-claim. In any case time to deliver defence expires latest by the decision of the suit. In the instant case counter-claim was sought to be filed in appeal, hence it was not at all permissible. Reference may be made to:

Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others,

Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs.,

Ramesh Chand Ardawatiya Vs. Anil Panjwani,

Mangulu Pirai Vs. Prafulla Kumar Singh and Others,

Smt. Parvathamma Vs. K.R. Lokanath and others,

MS Shoes East Ltd. and Others Vs. Debt Recovery Appellate Tribunal and Another, and

Hanumanthagouda v. Bandu alias Bandeppa Venkatesh Kulkarni and Ors. AIR 2001 Kar 10.

The third plea sought to be added through amendment was regarding bar of Section 330 of U. P. Zamindari Abolition and Land Reforms Act. u/s 21 of Code of CPC it is essential that objection in respect of jurisdiction shall be taken latest by the date when issues are framed. In the instant case suit had already been decided, hence it could not be taken at the appellate stage. Even otherwise by virtue of Rule 285K of the Rules framed under U. P. Zamindari Abolition and Land Reforms Act institution of a suit in the civil court for the purposes of setting aside an auction sale on the ground of fraud is not barred.

Accordingly, I do not find least error in the impugned order rejecting the amendment application.

Writ petition is, therefore, dismissed. Appellate court is directed to decide the appeal as expeditiously as possible. During pendency of appeal execution of the decree against which appeal has been filed shall remain stayed on the condition that with effect from October, 2006 onward Appellant deposits Rs. 1000 per month before the appellate court by the 7th of each succeeding month for immediate payment to Respondents in the appeal.