HAZARI LAL Vs. BRAHMA NAND

JUDGEMENT

(1.) TARUN Agarwala, J. The plaintiff instituted a suit for a permanent prohibitory injunction restraining the defendants from transferring the suit property or from interfering in his right to raise the construction on the basis of an alleged sale deed dated 9-6-2005 obtained by the plaintiffs from Sri Ganga Prasad and Bipti Ram. The petitioners are the defendants and filed a joint written statement alleging that the suit property was an Abadi land and that Ganga Prasad and Bipti Ram were neither the owners nor were in possession and further they had no right or title to execute the sale deed dated 9-6-2005. During the pendency of the proceedings, the petitioners moved an application seeking an amendment in the written statement. By the said written statement, the petitioners sought to raise a counter-claim to the effect that the sale deed dated 9-6-2005 should be declared as null and void. The plaintiff filed his objection and the trial Court by an order dated 4-5-2006 rejected the application for the amendment of the written statement on the ground that a counter-claim cannot be raised subsequently by means of an amendment application and that a counter-claim can only be raised in the original written statement.

(2.) AGGRIEVED, the petitioners filed a revision, which was also dismissed. The Revisional Court held that since the issues had been framed and the plaintiffs had already given his evidence, the counter-claim, if allowed, would only prolong the litigation and, therefore, the amendment cannot be allowed. The Revisional Court further held that it would be open to the petitioners to file a separate suit seeking a declaration for declaring the sale-deed as null and void.

(3.) ORDER VIII, Rule 6-A of C. P. C. permits a defendant to set up a counter-claim against the claim of the plaintiff. The said provision reads as under : "a perusal of the aforesaid provision indicates that a counter-claim could be filed where the cause of action accrued either before or after the filing of the suit and, in any case, before the filing of the written statement. The counter-claim cannot be filed where the cause of action accrued to the defendants after the filing of the written statement. In the present case, the written statement was filed on 3-10-2002 and the cause of action, as admitted by the defendant, accrued on 31-7-2004, i. e. , after the filing of the written statement. Clearly the said counter-claim could not be filed in the present proceedings in view of the mandatory provision of ORDER VIII, Rule 6-A of the C. P. C. "