MOINUL HAQ Vs. IIIRD ADDL DISTRICT JUDGE BASTI

JUDGEMENT

(1.) -Heard learned counsel for the parties.

(2.) THIS writ petition is directed against the order dated 24.1.1990 passed by IIIrd Additional District Judge, Basti in Civil Appeal No. 27 of 1988. Through the said order application of defendant-petitioner, who is appellant in the aforesaid appeal, seeking amendment in the written statement has been rejected, hence this writ petition.

(3.) THROUGH amendment counter-claim for possession was also sought to be added in the written statement. By no stretch of imagination counter-claim can be permitted to be filed at the appellate stage. Under Order VIII, Rule 6A, C.P.C. it is provided that a defendant can file counter-claim against the claim of the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The Supreme Court while interpreting the said Rule has held that even after filing of written statement counter-claim can be filed. However, it has also been held that counter-claim can be permitted to be filed only uptill the stage when written statement could be filed. After conclusion of the evidence of both the parties there is no question of filing any counter-claim. In any case time to deliver defence expires latest by the decision of the suit. In the instant case counter-claim was sought to be filed in appeal, hence it was not at all permissible. Reference may be made to : 1. Mahendra Kumar v. State of M. P., AIR 1987 SC 1395 ; 2.Shanti Rani Das Dewanji v. Dinesh Chandra Day, AIR 1997 SC 3985 ; 3.Ramesh Chand Ardawatia v. Anil Panjwani, AIR 2003 SC 2508 : 2003 (3) AWC 2511 (SC) ; 4.Mangulu Pirai v. Prafulla Kumar Singh and others, AIR 1989 Ori 50 ; 5.Parvathamma v. K. R. Lokanath, AIR 1991 Knt 283 ; 6.M/s. Shoes East Ltd. and others v. Debt Recovery Appellate Tribunal and others, AIR 2001 Del 51 ; and 7.Hanumanthagouda v. Bandu alias Bandeppa Venkatesh Kulkarni and others, AIR 2001 Kar 10. 5. The third plea sought to be added through amendment was regarding bar of Section 330 of U. P. Zamindari Abolition and Land Reforms Act. Under Section 21 of Code of Civil Procedure it is essential that objection in respect of jurisdiction shall be taken latest by the date when issues are framed. In the instant case suit had already been decided, hence it could not be taken at the appellate stage. Even otherwise by virtue of Rule 285K of the Rules framed under U. P. Zamindari Abolition and Land Reforms Act institution of a suit in the civil court for the purposes of setting aside an auction sale on the ground of fraud is not barred.