ASHWINI KUMAR NAIK Vs. GOBARDHAN NAIK

JUDGEMENT

(1.) In this writ petition the petitioner, who is the plaintiff in Civil Suit No.85 of 2004 of the court of learned Civil Judge (Senior Division), Sundargarh, has assailed the order dated 24.1.2011 passed by the said court allowing amendment of the written statement of the opposite partydefendant by way of incorporation of counter claim.

(2.) The suit was filed by the petitioner seeking relief of declaration that the suit property was his absolute property. The defendant-opposite party is none other than the father of the petitioner. The plaintiff's claim was that though defendant purchased the suit land by his own salary income, a house was constructed thereon by the joint efforts and finance of both the parties. The loan incurred by the defendant for the purpose of construction of the house could not be repaid by him, but it was ultimately repaid by the plaintiff for which the property was mortgaged with him by the defendant. Since for the development of the property and construction of the house, the plaintiff has borne the entire expenses it has become his absolute property. As it appears, the suit has been decreed on compromise in favour of the plaintiffpetitioner, but the opposite party filed RFA No.43 of 2007 in this Court which was allowed and the compromise decree was set aside and the matter was remanded to the trial court for fresh disposal. Thereafter, the opposite party filed petition under Order 6 Rule 17 of the C.P.C. with a prayer to incorporate a counter claim in the written statement. The counter claim mainly relates to additional prayer for declaration of defendant's right, title and interest over the suit land and for recovery of possession and for recovery of the rent realised by the plaintiff from the suit house pursuant to the compromise decree. The amendment was allowed by the impugned order subject to payment of cost of Rs.100/- by the opposite parties to the plaintiff-petitioner.

(3.) The only contention raised by the learned counsel for the petitioner is that the counter claim was not maintainable after settlement of issues. For this, he relied on the decisions Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 AIR(SC) 2508 Gayathri Women s Welfare Association v. Gowramma and another, 2011 AIR(SC) 785 Learned counsel for the opposite party contends that those decisions have no application to the facts and circumstances of the present case.