ASHWINI KUMAR NAIK Vs. GOBARDHAN NAIK

JUDGEMENT

(1.) DISMISSAL of the writ petition Not interfering with the order dated 24 -1 -2011 passed by the learned Civil Judge, Senior Division, Sundargarh in Civil Suit No. 85 of 2004 allowing the amendment of the written statement of the opposite party -defendant by way of incorporation of counter -claim by affirming the said order is challenged in this appeal urging various grounds. He has prayed for setting aside the impugned order allowing the appeal and also quashing the order impugned in tile writ petition by allowing the same.

(2.) LEARNED counsel for the appellant placing strong reliance upon the decisions of the Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 AIR(SC) 2508and Gayathri Women s Welfare Association v. Gowramma and another, 2011 AIR(SC) 785contended that the Supreme Court has made observation with reference to Order 8. Rule 6 -A of the Code of Civil Procedure that the application for amendment of the written statement at the stage where the suit was remanded from the High Court ignoring the amendment of the written statement to tile counter - claim is not permissible in law. Therefore, the learned trial Judge ought not to have entertained the amendment application as the same is contrary to the decisions of the Supreme Court. referred to supra. The said legal contention urged was not considered by the learned single Judge by distinguishing the judgment in the case of Ramesh Chand (AIR 2003 SC 2508) without noticing the fact that the consent judgment -decree passed by the trial Court was set aside at the instance of the opposite parties in R.F.A. No. 43 of 2007 by this Court and remanded the matter to the trial Court. At that stage the amendment to the written statement was filed in the suit which related to additional prayer for introducing counter -claim. The said amendment was allowed by the order in the writ petition. In the case of Ramesh Chand , the amendment application allowed was challenged before the Supreme Court. The Supreme Court set aside the same holding that the counter -claim at that stage could not be allowed. The facts of the said case with all fours are applicable to the case on hand but that has not been applied. This decision was followed in the case of Gayathri Women s Welfare Association v. Gowramma, 2011 AIR(SC) 785 but the same was not considered by the learned single Judge. Therefore, the dismissal of the writ petition in not interfering with the order passed by the trial Court is not only erroneous in law but also suffers from error of law is the substantial question of law that would arise for consideration in this appeal. Therefore, he requested this Court to answer the said substantial question in favour of the appellant by allowing this appeal and grant the relief as prayed for in this appeal.

(3.) WITH reference to the above said legal contention, we have carefully examined the impugned order passed by the learned single Judge with a view to find out as to whether the impugned order is vitiated in law and requires interference by this Court. Learned single Judge has extracted the observation made in Ramesh Chand (AIR 2003 SC 2508) and distinguished the facts of the said case with the case on hand and held that the facts of the case on hand are distinguishable and therefore held that the observation made in the said case need not be applied to the fact situation and affirmed the order of the trial Judge in granting the relief by allowing the amendment application to amend the written statement incorporating counterclaim. Learned single Judge at paragraph 7 of the judgment has referred to the factual matrix of the case wherein the suit between the parties was decreed on compromise. In the case at hand, the compromise decree was set aside in appeal at the instance of the defendant - opposite party. The matter was remanded to the trial Court for hearing and disposal. Thereafter the opposite party sought for' amendment of the written statement by incorporating the counter -claim seeking relief of declaration of right, title and interest and recovery of possession as because being on the compromise decree passed earlier the suit land had been mutated in the name of the plaintiffappellant herein. Therefore, the learned single Judge has opined that the general proposition of law laid down in the decision of the Apex Court referred tohas no application to the instant case permitting the respondent -defendant to file counterclaim by way of amend - ment. Having regard to the fact situation, noninterference with the impugned order passed by the trial Court by distinguishing the judgment of the Apex Court referred toand confirming the order is perfectly legal and valid. The same does not call for interference as the trial Judge exercised the discretionary power and granted the relief, the same is confirmed by the learned single Judge by passing the impugned order. That order need not be disturbed by this Court keeping in view the provisions of Section 105. CPC. The appeal is dismissed as the same is devoid of merit.