Shri Vinayak Buildcon (Partnershif Firm) vs Manohar Patidar

U. C. Maheshwari, J.—The petitioners/defendants no. 1 & 2 have filed this petition under Article 227 of the Constitution of India, being aggrieved by the order dated 12.8.2013 (Annexure-P-5) passed by IInd Additional District Judge Bhopal, in Civil Original Suit No. 121-A/12, whereby their application filed under Order 6 Rule 17 of CPC., to amend the written statement to file the counter-claim on the basis of date of cause of action which has come into existence subsequent to filing the original written statement has been dismissed. Petitioners'' counsel after taking me through the averments of the petition as well as the papers placed on the record including the impugned order argued that undisputedly, the written statement was filed on some earlier stage but as per procedure provided under Order 8 Rule 6A read with Order 6 read with Order 17 of CPC., the pleadings could be amended on the basis of subsequent event which has come into existence subsequent to filing the written statement and in such premises, the trial Court ought to have allowed the impugned application and permit the petitioners to incorporate the proposed amendment in the written statement, but the same has been dismissed under the wrong premises and prayed for allowing his application by setting aside the impugned order by admitting and allowing this petition.

Keeping in view his arguments, I have carefully gone through the existing pleadings along with the available papers so also the impugned order. As per Order 8 Rule 6A of CPC., in normal course the counter-claim should be filed in the matter on the day first when the defence is disclosed by the defendants and such stage is available to the defendants till filing the written statement and not subsequent to that. In any case, on the basis of date of cause of action which has come into existence before filing the written statement and on that basis, the counter-claim is filed at later stage on the basis of existing pleadings of the written statement as an additional approach then till such extent, such application could be considered, but when the cause of action has come into existence to file the counter-claim subsequent to filing the written statement, then the party like petitioner could not have been permitted by the trial Court to amend the written statement for inserting such prayer for counter-claim in the written statement or separately in the trial Court.

It is apparent from the impugned application of the case at hand that the stated cause of action for filing the counter claim has come into existence subsequent to filing the written statement, so in such premises, the same could not have been allowed by the trial Court and consequently, it is held that the trial Court has not committed any error, irregularity and perversity in dismissing the impugned application of the petitioners. Consequently, this petition being devoid of any merit is hereby dismissed at the stage of motion hearing.

However, it is made clear that dismissal of the aforesaid application and this petition of the petitioners shall not come in their way to file the separate civil suit on the basis of available cause of action which has come into existence subsequent to filing the written statement in the present matter. Certified copy as per rules.