K.L. NAVYASHREE Vs. K. MANJUNATH

JUDGEMENT

(1.) The captioned writ petition is filed by the plaintiff feeling aggrieved by the order passed by the learned Judge on I.A.No.17 wherein defendant No.1 set a up counter claim by seeking amendment. The said order is under challenge.

(2.) Plaintiff has instituted a suit in O.S.No.774/2014 seeking the relief of injunction and declaration. Respondent No.1/defendant No.1 on receipt of summons tendered appearance and filed written statement on 19/6/2015. The plaintiff to substantiate his case has let in evidence and has also produced documentary evidence. Defendant No.1 has filed I.A.No.17 seeking amendment of written statement and by way of amendment, defendant No.1 intended to set up a counter claim seeking the relief of specific performance. The learned Judge allowed the application relying on the principles laid down by the Hon'ble Apex Court in the case of Nair Service etc. Vs K.C.Alexandar and Jai Jai Ram Vs. National Building & Company. Referring to these two judgments, learned Judge was of the view that to do complete justice, amendment deserves to be allowed.

(3.) On examination of the order under challenge, I would find that learned Judge has lost sight of the fact that by way of amendment of written statement, defendant No.1 intended to set up a counter claim. It is a trite law that subsequent to filing of written statement, counter claim cannot be filed after issues are framed. It is only in exceptional circumstances, the counter claim has to be permitted after issues are framed. But there is a rider that such a recourse is permissible, provided the plaintiff has not commenced with his evidence. In the instant case, defendant No.1 intended to set up a counter claim when plaintiff's evidence is recorded and closed.