ANAND PRAKASH Vs. RAGHUVEER SINGH PAREEK

JUDGEMENT

(1.) IT is submitted by learned Counsel that a suit for rent and eviction was filed in the year 1980. The petitioner is tenant -defendant. It is submitted that the evidence of the plaintiff -respondent has been closed and the matter was fixed for evidence of the petitioner -defendant. An application under Order 6 Rule 17 was filed for amending the written statement and setting up a counter claim/plea for fixation of standard rent. This application was rejected on the ground that as per provisions of Order 2 Rule 2 CPC, since the counter claim was not filed by the petitioner in the written statement, no such amendment can be allowed at this stage. It is submitted by learned Counsel that Order 2 Rule 2 CPC is applicable only to plaintiff and Rule 2 specifically lays down 'where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.' It is therefore, submitted that this provision has been wrongly made applicable to the petitioner -defendant. It is further submitted that in Deshraj v. Om Prakash 1990 (1) RLW 276 it was held that counter claim can be filed after filing of written statement. The option has been given to the defendant either to file the counter claim or to file a separate suit. This option must be exercised within a reasonable time. In Smt. Bina and Ors. v. Koran Singh 1989 (2) RLR 703 amendment of written statement was allowed in a suit for ejectment at the stage of final arguments. By way of this amendment defendants wanted to take plea for fixation of standard rent. The defendants had already submitted court fees alongwith written statement, which was sufficient for making prayer for fixation of standard rent. Necessary facts for fixation of standard rent were also mentioned in the written statement. However, due to in -advertance, specific plea was not taken. It was held that amendment deserves to be allowed keeping in view the facts mentioned above and that parties should not be penalised for mistake of their counsel. It is also submitted by learned Counsel that the petitioner -defendant is entitled for amendment of written statement at any stage and this has been allowed even at appellate stage.

(2.) I have heard learned Counsel and also gone through the documents on record and the impugned order. From the facts mentioned above, it is evident that the suit was filed as early as in the year 1986. The evidence of the plaintiff has been completed and it is only when the matter was fixed for evidence of petitioner -defendant, that this application for amendment was filed. The petitioner -defendant was well within his rights to have put -forth the plea for fixation of standard rent in the written statement itself. This was not done and after passage of more than 5 years, this application has been filed to reverse the clock back of whatever progress is made in the trial court, which are heavily over -burdened with the work. Since this application has been filed at such a late stage, it casts doubt that the same has not been filed with bonafide intention and the real purpose behind this is to delay the proceedings in the trial court. The petitioner -defendant is always well within his rights to file proceedings for fixation of standard rent, which he should or could have been done, even earlier. Therefore, by rejecting the application for amendment, the doors of seeking remedy will not be closed at the face of the petitioner. In case of Deshrqj (Supra) this Court has already emphasised that this option of filing any counter claim for fixation of standard rent must be exercised within a reasonable time. The reasonable time cannot be in any case be a period of 5 years, which is rather too long a time to wait for filing such plea of fixation of standard rent. In matter of Smt. Bina (Supra), the facts were different, even necessary amount of court fees had been filed. However, in -advertantly, the specific plea regarding standard rent was not taken. In this matter under consideration neither any plea for fixation of standard rent has been raised in the written statement nor any court fee has been filed alongwith written statement, and application is filed after 5 years. Therefore, both these authorities are of no help to the petitioner. I am, therefore, of the considered opinion that the application of the petitioner does not deserve to be allowed.