ORDER
B.S. Verma, J.
1. The writ petition is admitted.
2. This writ petition has been preferred for issue a writ, order or direction in the nature of certiorari quashing the impugned Judgment and order dated 15-4-2000 and 14-10-1999 passed by the respondent Nos. 1 and 2 respectively (Annexure Nos. 8 and 7 respectively), By the order dated 15-4-2000, the application for amendment of written statement/counter claim under Order 6, Rule 17 C.P.C. (paper No. 265-A) filed by the defendant-respondent Nos. 1 to 3 has been allowed on payment of cost of Rs. 250/- and the objection of the plaintiffs paper No. 268-C has been rejected. By the order dated 15-4-2000 the revision preferred by the petitioner-plaintiffs has been rejected by the District Judge Nainital.
3. The plaintiffs-petitioners filed a Civil Suit No. 84 of 1988 for a decree of permanent injunction against the defendant-respondent Nos. 3 to 6. Written statement was filed in the suit, issues were framed and the suit was fixed for final hearing by the trial Court.
4. By the application paper No. 265-A, the defendant Nos. 1 to 3 prayed for counterclaim on the ground that on 7-9-1998, the plaintiffs and defendant No. 4 Bal Krishna Sanwal had entered into a compromise without the consent of co-defendants, which necessitated the amendment in the written statement to file counter-claim in the suit. The application was opposed by the plaintiff-petitioners, who filed objection contending that the application has been moved at a highly belated stage to prolong the litigation and that the application is mala fide and prejudicial to the interest of the plaintiffs. After hearing both the parties, the learned Civil Judge (Senior Division) Nainital allowed the application for counter claim on payment of costs of Rs. 250/- thereby permitted the defendants to amend their written statement vide order dated 14-10-1999.
5. Aggrieved by the said order, the plaintiff-petitioners preferred revision (Civil Revision No. 21 of 1999) before the District Judge, Nainital, on the ground that the applicant-defendants had disclosed their defence and as such the cause of action in respect of which the counter-claim has been sought by paper No. 265-Ka was in the knowledge of the defendants from the very beginning and the application was barred by the provisions of Order 8, Rule 6-A of the C.P.C. It was also contended that the trial Court failed to exercise the jurisdiction vested in it by law by not rejecting the amendment application to amend the written statement of the respondent Nos. 3 to 5 at a highly belated stage when the statements of the plaintiffs had already been recorded in the suit.
6. The learned District Judge by order dated 15-4-2000 has dismissed the revision and confirmed the order passed by the learned Civil Judge (Senior Division) Nainital holding that the counter claim can be filed even after filing of the written statement and that the grant of permission to amend the written statement does not cause any prejudice to the rights of the plaintiffs.
Aggrieved by the impugned orders passed by the trial Court as well as the revisional Court, the plaintiff-petitioners have come up before this Court in the present writ petition on the same grounds.
7. It has been stated by the plaintiff-petitioners in paragraph No. 10 of the writ petition quoted as under:
10. That survey commission was held for plot Nos. 8 and 9. Later issues were framed on 10-8-1998. During all these periods the defendants 1, 2 and 3 did not move any application for amendment of written statement up nor had set up any counter claim. They further permitted the recording of the evidence of plaintiffs on the same day i.e. 6-10-1998 but had thereafter filed an objection under Order 6 Rule 17 of the Code of Civil Procedure on the same day seeking relief to restrain the plaintiffs by decree of permanent injunction, from interfering in those defendants possession over their plot No. 9 measuring as described in Para 25 of the said application. A true copy of the amendment application being paper No. 265Ka is being filed herewith and is marked as Annexure V to this writ petition.
8. Counter affidavit has been filed on $5ehalf of the respondent Nos. 3, 4 and 5. In reply to paragraph No. 10 of the writ petition, the following averment has been made in paragraph No. 13 of the counter affidavit.
13. That para No. 10 of the petition is not admitted. The amendment applications claimed as Annexure No. 5 marked as annexure No. 7 pages Nos. 44 to 47 of the writ petition, a perusal of the documents filed by the petitioner reveals the page Nos. 3 and 4 or some other document have been deliberately tagged with page Nos. 1 and 2 of the amendment application. It is apparent that whereas page Nos. 1 and 2 proceed with the sequence of proposed amendment paras No. 21, 22, 23 and 24 the next to pages contain para Nos. 12-20 and are in the nature of written statement. A copy of amendment application is annexed as Annexure C-A 3 to this affidavit.
9. This much is clear that the averment made by the petitioners that the application for amendment (paper No. 265-A) has been filed after the examination-in-chief of the plaintiff had started. The contents of paragraph No. 10 have not been controverted in the counter affidavit. Moreover, in paragraph No. 23 of the petition, the petitioners have stated that the evidence of the plaintiffs had already commenced and the counter claim had not been set up in the original written statement or before the framing of issues and before recording of evidence, therefore, the same could not be allowed to be set up in the suit as it would cause great prejudice to the plaintiffs and the Courts below have erred in law in not considering it.
10. In reply of the contents of paragraph No. 23, only it has been stated that paragraph No. 23 of the petition is not admitted. The petitioners have filed Rejoinder Affidavit and in paragraph No. 23 thereof it has been specifically contended that the written statement was filed by the defendants on 10-3-1998, issues were framed on 10-8-1998 and the petitioners' examination as witness had already started on 6-10-1998 and cross-examination started from 26-10-1998 when the plaintiff was cross-examined, which continued thereafter and the application for counter claim was moved on 6-10-1998.
11. I have heard learned Counsel for the petitioner as well as learned Counsel for the contesting respondent Nos. 3 to 5 and perused the record including the counter-affidavit and the rejoinder affidavit filed by the parties vis-a-vis the impugned orders as well as the case-laws cited by the learned Counsel for the parties.
12. It is pertinent to note that Order VIII Rule 6-A(1) of the Code of Civil Procedure provides that a defendant in a suit may, in addition to his right of pleading a set-off 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 counter-claim is in the nature of a claim for damages or not.
13. The learned Counsel for the defendant-respondents has contended that the defendants Nos. 1 to 3 had every right to file counter claim in the suit and the trial Court has rightly allowed their application. Learned Counsel has placed reliance upon the case of Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. MANU/SC/0565/1996 : AIR1996SC2222 wherein it has been held that in a suit for injunction, counter claim for injunction in respect of the same or a different property is maintainable. A defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. The ratio of the judgment cannot be disputed. In the case before the Apex Court, the respondent-defendant on receipt of the summons In the suit filed written statement pleading Inter alia that they had purchased the lands in Khasra No. 103/1 situated at Budha Theh Tehsll Baba Bakalia District Amritsar and that they are in possession and enjoyment of 18 marlas of the said land. They sought counter-claim of permanent injunction to restrain the appellants from interfering with their possession and enjoyment of the said land. In the case at hand, the position is different. In the written statement the respondent Nos. 3 to 5 had not set up any counter-claim. The written statement was filed on 10-3-1998, issues were framed on 10-3-1998 and the evidence of the plaintiffs had commenced on 6-104 0i8 and then the application for amendment under Order 6, Rule 17 C.P.C. was filed, Therefore, the facts of the present ease are quite distinct.
14. The learned Counsel for the respondents further placed reliance upon the ease of Gurbachan Singh v. Bhag Singh and Ors. AIR 1900 Supreme Court 1087 wherein it has been held that the counter-claim for possession by defendant also can be entertained by virtue of Order 8, Rule 6A (1) of the C.P.C. The ratio of the judgment cannot be disputed. But in the case before the Apex Court, the defendants raised counter-claim, in the written statement, for possession. In the case at hand, no counter-claim had been set up in the written statement and even before framing of issues. The defendants participated in the proceedings upto the stage of recording of plaintiffs' evidence and thereafter filed the application for amendment in the written statement. The case law is of no help to the respondents.
15. Learned Counsel for the respondents further placed reliance upon the case of Ram Swaroop v. Mandir Thakran Kalyan Rai MANU/HP/0017/2001 wherein it has been held that where cause of action for filing counter-claim arose before filing written statement, an application for amendment of written statement so as to add the counter-claim was not liable to be dismissed on ground that it was filed after filing of written statement, Filing of counter-claim after filing of the written statement is not barred if the cause of action for the counter claim had arisen before the filing of the written statement, However, in a ease where the cause of action to file counter claim irises after the filing of the written statement, the defendant is debarred from filing the counter-affidavit.
17. In the case at hand, the controversy to be determined in this writ petition is whether the trial Court was justified in allowing the application 265-A moved under Order 6, Rule 17 C.P.C. on 6-10-1998 thereby permitting the defendant Nos. 1 to 3 to amend their written statement after framing of the issues in the suit? The matter to be considered is upto what stage of suit, it will be permissible to entertain the counter claim by the defendant? The Apex Court has dealt with the controversy in a number of eases, in the case of Mahendra Kumar and Anr. v. State of Madhya Pradesh and Ors. MANU/SC/0040/1987 : [1987]3SCR155 It hag been inter alia held that Order 8 Rule 6-A(1) does not, at the face of it, bars the filing of counter claim by the defendant after he had filed the written statement. The same view has been taken in the cases of Ram Swaroop v. Mandir Thakran Kalyan Rai MANU/HP/0017/2001; Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra (dead) by LRs. MANU/SC/0979/1997 : AIR1997SC3985 ; Oriental Ceramic Products Pvt. Ltd. v. Calcutta Municipal Corporation AIR 2000 Calcutta 17; Ramesh Chand Ardawatiya v. Anil Panjwani MANU/SC/0387/2003 : [2003]3SCR1149 ; Smt. Parvathamma v. K.R. Lokanath and Ors. AIR 1991 Karnataka 283; Sushil Kumar Misra v. Shankunta Devi and Ors. 1988 All LJ 205; and Sudhir Kumar Wadhwa v. IV Additional District Judge, Shahjanpur and Ors. 1997 (1) Civil Court Cases 223 (Allahabad).
17. The Karnataka High Court in Smt. rarvathamma v. K.R. Lokanath and Ors. AIR 1991 Kant 283 (supra) while dealing with point of time limit for setting up counter claim in a suit has inter alia held in Para No, 8 as under:
Therefore, it is necessary to determine as to what is the time limit for setting up a counter claim. A reading of Rules 6A and 6G of Order 8 of the C.P.C. makes it clear that the counter claim has to be treated as a cross suit and it has to be tried along with the original claim made in the suit. When the counter claim has to be tried along with the original claim and all the rules of pleading apply to a counter claim and it becomes a plaint In the cross suit and the plaintiff is entitled to file a written statement In answer to the counter claim of the defendant. It necessarily follows that a counter claim, If not set up in 'the written statement, it has to be set up before the issues are framed, at any rate, before recording of the evidence commences. If a counter claim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit because at the time of adducing evidence, he will not be aware of the counter claim, as it will not be on record, Therefore, he cannot be expected to, and he is not required to, adduce evidence having a bearing on the counter claim, Further allowing the counter claim to be set up after the evidence is recorded would be doing nothing but ignoring Rules 8A to 6C of Order VIII of the C.P.C. It would also result in protracting the trial and would defeat the very object of treating the counter claim as a cross suit and trying the issues arising therefrom along with the issues arising in the suit.
18. The Apex Court in the case of Ramesh chand Ardawatiya v. Anil Panjwani MANU/SC/0387/2003 : [2003]3SCR1149 , while dealing with the provisions of Rules 6-A, 6-B, 6-C, 6, 8, 9, 1 and 2 of Order 8 and Order 6, Rule 17 of the C.P.C. has held in paragraph No. 28 as under:
28. Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter claim which in the light of Rule 1 read with Rule 6A would be a counter claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A, Secondly, a counter claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed Thirdly, a counter claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order 6 Rule 17 CPC If sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order 8 Rule 9 CPC is sought to be placed on record by way of subsequent pleading, The purpose of the prevision enabling filing of ft counter claim is to avoid multiplicity of Judicial proceedings and save upon the Court's time as also to exclude the Inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing ft delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter claim, The framers of the law never intended the pleading by way of counter claim being utilised as an Instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter claim net contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial and more so when the trial has already commenced. But certainly a counter claim is not entertainable when there is not written statement on record. There being no written statement filed in the suit, the counter claim, was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter claim being introduced by way of amendment, for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter claim being raised by way of 'subsequent pleading' as there is not 'previous pleading' on record. In the present case, the defendant having failed to file any written statement and also having forfeited his right of filing the same the trial Court was fully justified in not entertaining the counter-claim filed by the defendant, appellant. A refusal on the part of 'the court to entertain a belated counterclaim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim.'
19. As mentioned earlier, the defendant-resppondent Nos. 3 to 5 have not controverted the averments made in paragraph No. 10 wherein it was alleged that the defendants permitted the recording of evidence of plaintiffs on 6-10-1998 but thereafter they filed an application under Order 6, Rule 17 of the C.P.C. Similarly, in paragraph No. 23 the petitioners have stated that the evidence of the plaintiffs had commenced. The defendant-respondents have not specifically denied these assertions made by the petitioners in their counter affidavit. Therefore, it is fully established that the counter claim by the defendant-respondent Nos. 3 to 5 was filed at a highly belated stage when the evidence of the plaintiffs had commenced before the trial Court on 6-10-1998. In such circumstances, the Trial Court instead of allowing the application of the defendants 265-Ka ought to have permitted them to file separate suit against the plaintiffs. The trial Court has thus committed a manifest error of law in passing the impugned order, therefore, the impugned order dated 14-10-1999 passed by the learned Civil Judge (Senior Division) Nainital cannot be sustained. Similarly, the learned District Judge Nainital while deciding the Civil Revision No. 21 of-1999 has not considered this aspect of the case that the evidence of the plaintiffs had already commenced in the suit. The learned District Judge has not properly interpreted the ratio of AIR 1991 Karnataka 283 (supra) and has not relied upon the same by observing that no time limit had been indicated in the judgment. The revisional Court clearly fell into error in view of the Apex Court verdict in the case of Ramesh Chand Ardwatiya v. Anil Panjwani MANU/SC/0387/2003 : [2003]3SCR1149 (supra), wherein it has been observed that generally speaking, a counter claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. In my view, at any rate, after the evidence of the plaintiffs commenced in the suit, trial Court could not have allowed the application of the defendant-respondents, paper No. 265-Ka especially when the same had been moved at a highly belated stage.
20. Having perused the case-laws, referred to above, I am of the considered view that a counter claim ought to have been set up by the defendant before the framing of issues and at any rate, before recording of the evidence commences in the suit. I am in full agreement with the view taken by the Karnataka High Court in AIR 1991 Karnataka 283 that if a counter claim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit, because he would not be aware of adducing evidence against the counter claim. It has been observed by the Apex Court in MANU/SC/0387/2003 : [2003]3SCR1149 (supra) that the framers of the law never intended the pleading by way of counter claim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. In no case, the counter claim is not entertainable when the trial had already commenced.
21. Both the Courts below did not consider this aspect of the case that what would be the effect of the commencement of trial and whether the counter claim can be entertained in such situation. Hence the order passed by both the Courts below are manifestly erroneous and perverse.
22. In view of the discussion aforesaid, I therefore hold that the counter-claim by the defendant-respondent Nos. 3 to 5 was filed at a belated stage after commencement of the trial, therefore, impugned order dated 14-10-1999 passed by the trial Court is liable to be set aside and the application of the respondent Nos. 3 to 5 (paper No. 265-Ka) is liable to be rejected. Similarly, the judgment and order dated 15-4-2000 passed by the revisional Court is also liable to be quashed. Accordingly, the writ petition succeeds.
23. The writ petition is allowed with no order as to costs. The order dated 15-4-2000 passed by the District Judge, Nainital and the order dated 14-10-1999 passed by the Civil Judge (Senior Division) Nainital in Civil Suit No. 84 of 1988 are set aside. The application of the defendant-respondent Nos. 3 to 5 under Order 6, Rule 17 C.P.C. stands dismissed. They may bring separate suit against the plaintiff-petitioners. The trial Court shall proceed with the suit in accordance with law and shall decide the same on merit expeditiously as far as possible.
24. The interim order dated 11-7-2000 is vacated. All applications stand disposed of.