SANTILATA TRIPATHY Vs. KRUSHNAPRIYA PANI ALIAS TRIPATHY

JUDGEMENT

(1.) PETITIONERS are defendants in C.S. No. 42/2002 pending in the Court of Learned Civil Judge (Senior Division), Angul.

(2.) THIS Writ Petition has been filed assailing the Orders dated 15.12.2003 and 25.3.2004 passed in the said suit rejecting the applications filed by Petitioner No. 1 under Order VI, Rule 17 read with Order VIII, Rules 6 -A and 9 of the Civil Procedure Code for amendment of the written statement and shifting the burden on the defendants to begin the evidence first. It is alleged in the plaint that after the premature death of late Ruchir Kumar Tripathy his wife Krushnapriya Pani @ Tripathy -Opposite Party No. 1 as plaintiff filed C.S. No. 42/2002 praying for recovery of half share out of the three matured L.I.C. Policies held by her late husband. Petitioner No. 2 had allegedly withdrawn the amounts on 19th March, 2001 as nominee in the said policy. The defendants appeared and filed their written statement repudiating the averments made in the plaint. After written statement was filed the plaintiff filed a petition under Order 18, Rule 1, CPC which was allowed and the defendants were directed to begin the evidence. The present dispute centres round the Order dated 25.3.2004 by which the Trial Court rejected the petition filed by the defendants to amend the written statement and also to prefer a counter claim. According to the Learned Counsel for the petitioners the said order being passed without property appreciating the facts is liable to be set aside. Learned counsel for the opposite party, at the other hand, supported the order and submitted that the Court below has taken into consideration all the facts as well as the position of law and the order does not suffer from any infirmity.

(3.) THAT apart as it appears from the pleadings the cause of action for raising the counter claim arose on 10.1.2004 whereas the written statement was filed by Defendant No. 2 on 16.10.2003. Law is well settled that a cause of action which has arisen at a date later than filing of the written statement cannot be set up as a counter claim. In the case Ramsewak Kashinath v. Sarafuddin and Ors., reported in AIR 1991 Orissa 51 interpreting Order VIII, Rule 6 -A of the Civil Procedure Code this Court observed that a counter claim by the defendant could be made before the time limited for submission of the written statement has expired and in no case at a later stage. Similarly, the Supreme Court in the case of Ramesh Chand Ardawatiya v. Anil Panjwani, reported in 2003 (4) Supreme 27 observed that the counter claim under Rule 6 -A of Order VIII of Civil Procedure Code must necessarily find its place in written statement and once the right of the defendants to file written statement had been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counter claim can be allowed to be raised.