Surendra Govind Naik Chodankar vs Bhiku Govind Naik

F.M. Reis, J.—Heard Mr. S. Naik, learned counsel appearing for the petitioner and Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for the respondent. Rule. Heard forthwith with the consent of the learned counsel.

The learned counsel appearing for the respondent waives service.

The above petition challenges an order dated 26.02.2013 passed by the learned Civil Judge Junior Division, Panaji, whereby an application for amendment of the written statement as well as to introduce the counter-claim filed by the petitioner came to be rejected.

The brief facts of the case are that the respondent filed a suit for recovery of possession of the suit premises from the petitioner herein. In the said suit, the petitioner filed his written statement inter alia claiming that he has been using the suit premises continuously and uninterruptedly and that he has acquired right of adverse possession/prescription. Thereafter, the petitioner filed an application for amendment inter alia seeking to incorporate the fact that the suit is barred by limitation and a counter-claim alleging that he has acquired right to the suit premises by prescription. The respondent opposed the said application on different counts. The leaned Judge by the impugned order refused the application for leave to amend as well as to introduce the counter-claim.

The learned counsel appearing for the petitioner has assailed the impugned order on the ground that the petitioner had obtained legal advise and accordingly sought to amend the written statement and introduce the counterclaim. The learned counsel further submitted that the question of refusing the counter-claim would not arise as according to him the cause of action to file such counter-claim has arisen before filing of the written statement. The learned counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously refused the application for amendment as well as the application to introduce the counter-claim on erroneous consideration. The learned counsel further submitted that the amendment sought by the petitioner is very much necessary to decide the matter in controversy.

On the other hand, Mr. J.E. Coelho Pereira, learned Senior Counsel appearing for the respondent has pointed out that there is no due diligence shown in terms of the proviso to Order 6, Rule 17 of CPC. The learned Senior Counsel further pointed out that the question of introducing any counter-claim at this stage would not arise as according to him the allegations made in the counter-claim are totally without any footing. The learned Senior Counsel has taken me through the impugned order and pointed out that the learned Judge has rightly dismissed the application only for amendment of the written statement.

I have considered the submissions of the learned counsel and I have also gone through the records. The application filed by the petitioner has two parts. One is to amend the written statement and other part is to introduce the counter-claim. As far as the amendment of the written statement is concerned, Mr. Coelho Pereira, learned Senior Counsel appearing for the respondent is justified to contend that the petitioner has not disclosed any due diligence I in terms of the proviso to Order 6, Rule 17 of CPC as the trial has admittedly already begun in the suit. In such circumstances, the learned Judge was justified to refuse the application to amend the written statement. In any event, the learned Judge has also observed that the proposed amendment to the effect that the claim of the petitioner is barred by limitation is a matter which can be dealt with by the learned Judge in terms of Section 3 of the Limitation Act, 1963. As such, there is no error committed by the learned Judge in refusing leave to amend the written statement.

With regard to the contention of the learned counsel appearing for the petitioner to the effect that there is no reason to refuse the counter-claim being incorporated by the petitioner, I find that in the facts and circumstances of the case, considering that the cause of action to file the counter-claim has allegedly arisen before filing of the written statement, there is no reason to refuse the petitioner leave to introduce the counter-claim in terms of Order 8, Rule 6-A of CPC. The Apex Court in the judgment, reported in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, , has observed that as the cause of action for the counter-claim has arisen before filing of the written statement, the counter-claim was therefore quite maintainable. Considering the counter-claim which is sought to be filed by the petitioner, I find that it is always open to the Court to allow such counter-claim to be filed as it would subserve the ultimate cause of justice and avoid further litigation. In such circumstances, I find that the learned Judge was not justified to refuse the introduction of the counter-claim by the petitioner as it cannot be said that it was filed belatedly. In view of the above, I pass the following:

ORDER

(i) The petitioner is permitted to introduce the counter-claim only as proposed in the application dated 18.01.2013. Leave to amend the written statement stands rejected.

(ii) Needless to say that the respondent is entitled to file his written statement to the counter-claim and take all defences available to him in accordance with law.

(iii) Rule is made absolute in above terms.

(iv) The petition stands disposed of accordingly.