VAIJNATH Vs. KASHINATH

JUDGEMENT

(1.) Heard both sides.

(2.) The petitioners are the original defendants in Regular Civil Suit No. 260 of 2003 instituted for declaration of ownership and permanent injunction. The said declaration seems to have been sought on the basis of partition. In the pending suit, the petitioners have filed a written statement and also filed their counter claim under Order VIII Rule 6 of C.P.C. The petitioners filed an application Exh.49 under Order VI Rule 17 of C.P.C. for amendment in the counter claim. The respondent-plaintiff strongly resisted the said application by filing say. The trial court, by the impugned order dated 20.3.2007 below Exh.49 in R.C.S. No. 260 of 2003, rejected the said application.

(3.) Learned counsel for the petitioners submits that the respondent-plaintiff had filed an application Exh.33 for leave to withdraw the suit on condition to file a fresh suit on the same cause of action. By order dated 15.6.2005, the trial court has allowed the application Exh.33 permitting the respondent-plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action and further directed that the counter claim of the petitioners-defendants will remain in force. Learned counsel submits that application Exh.49 came to be filed after withdrawal of the suit. Learned counsel submits that the proposed amendment in para 2(A) of the application is clarificatory in nature and it would not change the nature of the counter claim in any manner. Learned counsel submits that the trial court has rejected the application mainly on the ground that the application under Order VI Rule 17 of C.P.C. came to be filed belatedly. Learned counsel submits that apart from this, the trial court has also considered merits of the said application which is unnecessary at the stage when the application has been filed seeking amendment in the counter claim. Learned counsel submits that though the application Exh.49 came to be filed belatedly, however, it is observed in para 3 of the impugned order itself that the respondent-plaintiff has not filed any written statement to the counter claim nor the trial of the suit has been commenced. Learned counsel submits that though the respondent-plaintiff has thereafter instituted a fresh suit on the same cause of action, however, the proposed amendment is necessary for just disposal of the counter claim. However, the trial court has not considered the same.