SUKDEV SAHA Vs. TUSHER KANTI SENGUPTA

JUDGEMENT

(1.) The revisional application arises out of an order dated December 16, 2020 passed by the learned Civil Judge (Junior Division), Bidhannagar, in Title Suit No.63 of 2019. The petitioner is aggrieved by the portion of the order by which the application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure dated October 5, 2020 filed by the defendant was allowed on contest. The petitioner contended that the counter-claim sought to be incorporated in the written statement by way of an amendment of the written statement was not maintainable in the eye of law. Thus such portion of the order impugned suffered from jurisdictional error.

(2.) The first contention of the petitioner was that the counter-claim was not properly valued. The first prayer for declaration in the counter-claim that the defendant was entitled to get recovery of possession, was barred by law, in view of the fact that a relief for declaration without any prayer for recovery of possession was hit by the proviso to Section 34 of the Specific Relief Act, 1963. It was further contended that had the reliefs in the counter-claim been correctly stated and valued, the learned Civil Judge (Junior Division) Bidhannagar would not have the pecuniary jurisdiction to decide the said suit and the counter-claim. Learned Advocate for the petitioner further submitted that the counter-claim could not be entertained in view of the fact that the defendant could not have valued the counter-claim as one for eviction of a trespasser but as a suit for eviction of a licensee, when admittedly, the defendant had acknowledged throughout the body of the written statement that the plaintiff was a licensee. The counter-claim was under-valued and the prayers were also barred by law. Learned Advocate for the petitioner relied on the following decisions:- Mehar Chand Das vs. Lal Babu Siddique and Ors., 2007 14 SCC 253, Nellimarla Jute Mills Company Ltd. vs. Rampuria Industries and Investments Ltd., 2000 2 CalLJ 70, Union of India vs. Ibrahim Uddin and Anr., AIR(SC)(Civ) 1571 and Vinay Krishna vs. Keshav Chandra and Anr., 1993 Supp3 SCC 129.

(3.) Mrs. Sohini Chakraborty, learned Advocate appearing on behalf of the opposite party submitted that at the time of consideration of the amendment of the written statement for incorporation of the counter-claim, the learned Court was not required to go into the merits of the counter-claim. The amendment was rightly allowed in order to avoid multiplicity of proceedings as the issues involved in the plaint and the counter-claim could be disposed of in one suit. She further submitted that, whether the counter-claim was barred by law or whether the learned trial court had lost its pecuniary jurisdiction to try the suit and the counter-claim, were issues to be decided at a later stage and the petitioner was always at liberty to raise these objections in the written statement to be filed in response to the counter-claim. She further submitted that the suit was one for eviction of a trespasser as the licence granted to the petitioner was neither revoked nor terminated. Her contention was that the licence expired due to efflux of time and the petitioner continued to reside in the premises as a trespasser without handing over possession of the suit property even after the period of leave and license had expired. She further submitted that the provisions of The Suits Valuation Act, 1887, could be invoked by the learned Court below, if the petitioners raised the point of pecuniary jurisdiction or under-valuation, at the appropriate stage. She relied on the decision of Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 7 SCC 350 in order to urge that it was a well settled principle of law that a counter-claim could be filed by way of an amendment of the written statement and in this case, there was no illegality or material irregularity on the part of the learned Court below in allowing such amendment. She urged that the learned Court by enabling both the parties to place their claim and counter-claim could adjudicate their respective contentions in the same judicial proceedings which would save judicial time. The said counter-claim was filed at an early stage of the suit and as such, the defendant could not be barred under any law from incorporating the counter-claim, by way of an amendment. She submitted that the merits of the counter-claim would be decided later. She also relied on the decision of Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and Ors., 2006 4 SCC 385, in support of her contention that Courts should allow amendments that may be necessary for determining the real question in controversy between the parties, provided it did not cause injustice or prejudice to the other side. The Court should not go into the correctness of the amendments and was not required to record a finding on the merits of the amendment at the stage of considering the prayer for amendment. She submitted that if it was permissible for a party to file an independent suit on the same cause of action, in such event, a counter-claim should be allowed. Thus the learned Court was within its jurisdiction to allow the amendment in this case.