KAYUM Vs. MOHD. SIDDIKI

JUDGEMENT

(1.) Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Vishwa Pratap Singh, learned counsel for the petitioner and Sri Hari Prakash Tiwari, learned counsel appearing for the contesting respondent.

(2.) By means of this petition filed under Article 227 of the Constitution, petitioner has challenged the order passed by the trial court allowing the amendment in the written statement as well as counter-claim incorporated in the amendment application itself, moved on 19/12/2013 after exchange of pleadings initially made between the parties and also after framing of issues that took place on 27/11/2013.

(3.) The submission advanced by learned Senior Advocate is two-fold: Firstly, all these facts that are sought to be pleaded by way of amendment in the written statement were within the knowledge of the defendant-respondent and thus the respondent could have set up a counter-claim at that very stage while filing the written statement. Hence, he having the knowledge of the same, even the amendment application was barred in view of proviso contained under Order 6 Rule 17 of Civil Procedure Code; and secondly, the counter-claim could not have been accepted as it was made part of the amendment application filed seeking amendment in the written statement. He submits that defendant-respondent should have filed the counter-claim under Order 8 Rule 6A of the Civil Procedure Code independent of any amendment application seeking amendment in the written statement. He argues that counter-claim is also tried like a suit. He has placed reliance upon two judgments of this Court first being Kalam Beg v. District Judge, District Shrawasti and ors 2018 (36) LCD 164 and second being Kamal Kishor Kullar v. IInd Additional Civil Judge (J.D.), Gorakhpur and ors; 2007 (2) ADJ 396.