MARUTI VITHOBA KULAL Vs. NIVRUTTI DEORAM KULAL

JUDGEMENT

(1.) Heard finally with consent at admission stage.

(2.) The petitioners/plaintiffs have instituted Regular Civil Suit No.459 of 2000 for fixation of boundaries and recovery of the encroached portion of the suit land with a decree of perpetual injunction. The respondents/defendant Nos.2,6, 9 and 11 to 13 have strongly resisted the suit by filing their written statement at Exhibit 21. The respondent/defendant No.l has also adopted the written statement filed by the above defendants by filing pursis Exhibit 26. In due course, after the pleadings were completed, issues were framed and the parties also led their oral and documentary evidence in support of their rival contentions. The trial Court, after hearing the parties finally, reserved the matter for judgment and at this stage, respondent Nos. 1 to 3 have filed application Exhibit 80 for carrying out amendment in the written statement and also for filing counterclaim. The petitioners/original plaintiffs have strongly resisted the said application by filing say at Exhibit 82. The learned 2nd Joint Civil Judge, Senior Division, Sangamner, by impugned order dated 07.04.2017, allowed the application Exhibit 80 subject to costs of Rs.300/-and permitted the aforesaid respondents/defendants to amend the written statement as prayed. Hence this Writ Petition.

(3.) The learned counsel for the petitioners/original plaintiffs submits that the application Exhibit 80 for carrying out amendment and for filing of counterclaim at the belated stage, when the suit was reserved for pronouncing judgment, could not have been entertained by the trial Court. The learned counsel submits that more than six years have lapsed after filing the original written statement and at the belated stage, respondent Nos. 1 to 3 have filed the aforesaid application Exhibit 80. The learned counsel submits that in terms of the proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908, application for amendment is not allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the instant matter, no satisfactory explanation has been tendered by the respondents/defendants in the application Exhibit 80 for filing the application at such a belated stage. The learned counsel submits that even the counter-claim is also not maintainable in view of Order VIII, Rule 6-A of Civil Procedure Code as the same has been filed after the respondents/defendants have delivered their defence and the suit was posted for judgment. The learned counsel submits that filing of the application Exhibit 80 for carrying out amendment and for placing counter claim would seriously cause prejudice to the petitioners/plaintiffs. The learned counsel submits that if the suit is posted for the purpose of pronouncing judgment under Order XX, Rule 1, there is no adjournment of "the hearing" of the suit as there is nothing more to be heard in the suit. In terms of the ratio laid down by the Supreme Court in the case of Arjun Singh vs. Mohindra Kumar and others reported in, 1964 AIR(SC) 993, the Civil Judge was not competent to entertain the application Exhibit 80. The learned counsel submits that the provisions of Order VIII, Rule 6-A(l) enable the defendant in a suit to set up by way of a counter-claim against the claim of the plaintiff. However, after expiry of the date of fling the defence, the same is not permissible.