ASHOK KUMAR Vs. OM PARKASH

JUDGEMENT

(1.) THIS revision petition is against the order of Additional Civil Judge (Senior Division) dated 29. 5. 1996 allowing the respondents to amend the written statement thereby permitting them to incorporate counter claim in the proposed amended written statement.

(2.) IT has been urged by the learned counsel for the petitioner's that the order allowing the amendment is unsustainable in law on the short ground that vide the proposed amendment counter-claim is being set up which is impermissible in view of the decision of this Court in case reported as Bank of Baroda v. Sh. Gurcharan Singh, (1986-1)89 P. L. R. 46. Similar view has been taken in Srikanth Spinners v. State Bank of India, 1995 (1) Civil Court Cases, 453 (Andhra Pradesh High Court) and Kashi Biswanath Dev v. Parmananda Routrai and Ors. , AIR 1985 Orissa 260. According to the counsel, the proposed amendment violates themandate of Order 8 Rule 6-A cf the Cede of Civil Procedure. As per Order 8 Rule 6-A of the Code, a counter claim can be set up before the defendant has delivered his defence or before the time limited for delivering his defence has expired. In the instant case, written statement has been filed on 25. 3. 1996 whereas amendment of the written statement has been sought on 22. 5. 1996. Such being the admitted position, the Court below has erred in law-in permitting the respondents to amend the written statement with a view to set up a counter claim.

(3.) FACTS have been briefly noticed and, in fact, not in dispute. Concededly, written statement has been filed on 25. 3. 1996. The application for amendment was filed on 22. 5. 1996 and allowed by the trial Court vide order dated 29. 5. 1996. There is no denying the fact that this Court as well as two other Courts have taken a view that a counter-claim can be set up before filing of the written statement. In Bank of Baroda's case (supra), counter-claim was set up before the appellate Court. The Court thus held, "from a reading of the rules, it is clear that the defendant can file the counter-claim before delivering his defence or before the time limit for delivering his defence expires. He has also to mention that fact in the written statement. It is thus evident that the defendant can file the counter-claim before he files the written statement, and cannot be allowed to do so by amending the written statement. The object of incorporating the provision for setting up the counter-claim before the filing of the written statement appears to be, that the disposal of the suit may not be delayed. In the present case, the defendant has been allowed to set up a counterclaim even after the suit had been decreed against him, which, in my view, could not be done. " Similarly, Andhra Pradesh High Court in Srikanth Spinners' case (supra) while placing reliance upon the decisions of other High Courts including the case referred above held that the counter-claim cannot be set up by the defendant after filing of the written statement and particularly in the guise of amending the written statement. To similar effect is the decision of Orissa High Court in Kashi Biswanath Dev's case (supra) holding that Order 8 Rule 6-A is a bar for preferring a counter claim long after the filing of the written statement and after close of evidence in the suits.