VINOD KUMAR Vs. JAGMOHAN

JUDGEMENT

(1.) THIS revision petition filed under Section 5 of the Code of Civil Procedure (for brevity, the Code) challenges the order dated 13.3.2001 passed by the Civil Judge (Junior Division), Faridabad allowing the application of defendant-respondent No. 1 filed under Order 6 Rule 17 read with Order 8 Rule 6-A and Section 151 of the Code.

(2.) BRIEF facts necessary for deciding the controversy raised in this petition are that plaintiff-petitioner has filed a suit for permanent injunction against defendant-respondent No. 1 and another. Defendant-respondent No. 1 filed his written statement and also raised a counter-claim asserting that the plaintiff-petitioner is a trespasser and has been occupying the shop in dispute illegally and unlawfully. It has further been averred that the plaintiff-petitioner has no right, authority or title to continue in the shop in question. Defendant-respondent No. 1 has prayed for a direction to the plaintiff-petitioner to hand over the vacant physical possession of the shop to him. An application for amendment of the counter-claim has been made under Order 6 Rule 17 read with Order 8 Rule 6-A read with Section 151 of the Code proposing to incorporate the word possession after the word decree and before the word mandatory injunction. It has been averred in the application that by over-sight, relief for possession could not be pleaded in the counter-claim which is sought to be incorporated in the pleadings. The application was opposed on the ground that the relief for possession was barred by limitation and it would change the nature of the controversy. In the counter-claim which is originally made, it has only been pleaded that the plaintiff-petitioner is a trespasser and is occupying the shop in dispute illegally and unlawfully. On that basis, it was prayed that he cannot continue to be in occupation. It was further prayed that physical possession of the shop in question be handed over to defendant-respondent No. 1. The Civil Judge allowed the application by recording the following order :

(3.) SHRI Lokesh Sinhal, learned counsel for the plaintiff-petitioner has argued that amendment of the counter-claim has been allowed by the impugned order on 13.3.2001 on the basis of an application filed on 17.1.2001. According to learned counsel, the Civil Judge has heard the arguments on 16.1.2001 and the case was fixed for orders on 17.1.2001 when the application for counter-claim was filed. The learned counsel has placed reliance on a judgment of this Court in the case of Food Corporation of India v. M/s Krishna Rice and General Mills, (1990-2)98 P.L.R. 383 and argued that once the arguments have been concluded and the case has been fixed for arguments on 17.1.2001, then no application seeking amendment could have been entertained. His next submission is that the proposed amendment seeking the relief of possession is barred by limitation as according to the provisions of Order 8, Rule 6-A of the Code, counter-claim could only be filed before the defendant had delivered his defence, whereas in the present case defendant-respondent No. 1 had not only closed his defence, even the final arguments were heard on 16.1.2001. Another argument raised by the learned counsel is that if the amendment in the counter-claim is allowed, then the Civil Judge would be divested of his pecuniary jurisdiction.