2001(2) ALL MR 581
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR, J.

Suglabai Ravayya Jangam & Ors. Vs. Gurusidhya Basayya Jangam

Writ Petition No. 4730 of 1993

7th February, 2001

Petitioner Counsel: Shri. A.A.KUMBHAKONI
Respondent Counsel: Shri. G.S.GODBOLE

Civil P.C. (1908), O.6,R.17 r/w O.8, R.6 A - Amendment application for - Appeal - Amendment of written statement sought for setting up counterclaim - Appellate court cannot permit raising of counterclaim at appellate stage - Contention that as cause of action a continuing one such amendment can be allowed - Contention unsustainable.

AIR 1991 KAR 283, AIR 1985 ORI 260, 1986 Mh.L.J. 295 Relied on. (Paras 5,7)

Cases Cited:
Mahendra Kumar Vs. State of M.P., AIR 1987 SC 1395 [Para 5]
Parvathamma Vs. K.R.Lokanath & Ors., AIR 1991 Karnataka 283 [Para 6]
Kashi Biswanath Dev Vs. Parmananda Routrai & ors., AIR 1985 Orissa 260 [Para 6]
1986 Mh.L.J. 295 [Para 6]


JUDGMENT

JUDGMENT :- This writ petition, under Article 227 of the Constitution of India, is directed against the order passed by the 5th Additional District Judge, Solapur below Exh.29 in Civil Appeal No.203 of 1990 dated 24-9-1993.

2. Briefly stated, the Respondent filed suit against the petitioners for permanent injunction. The said suit was decreed by the trial Court on 31-3-1990. Against the said decree the petitioners preferred an appeal before the district Court, Solapur, being Civil Appeal No.203 of 1990. During the pendency of the said appeal the Petitioners filed an application below Exh.29 praying for amendment of their written statement. The nature of amendment prayed by the Petitioners was in effect for setting up a counter claim against the Respondent - original plaintiff. By the said amendment the Petitioners prayed for declaration against the Respondent original plaintiff that the Petitioners have right of way from the suit property by easement of necessity and incidentally prayed for injunction. The Court below rejected the said application mainly on the ground that the amendment sought by the Petitioners was barred by Limitation. For recording this conclusion the court has taken into account the fact that the decree passed by the trial Court was dated 31-3-1990 whereas the proposed amendment application was moved on 16-6-1993, viz. after 3 years.

3. Mr.Kumbhakoni, learned Counsel for the Petitioners strenuously contends that the cause of action for the proposed amendment is a continuing one; and, therefore, the view taken by the Court below that the proposed amendment was barred by limitation is inappropriate.

4. After having examined the rival pleadings and the submissions made across the bar, I have no hesitation in upholding the order passed by the District court-of rejecting the amendment application. The Court below, in my view, was justified in observing that even assuming the cause of action had arisen upon passing of the decree dated 31-3-1990, however, the amendment application was moved on 16-6-1993, therefore, the same was barred by limitation.

5. In so far as the contention advanced on behalf of the Petitioners that the cause of action was a continuing one, the same, in my view, is totally ill founded. In the first place no such relief could be entertained by the appellate court; inasmuch as the appellate court has no authority to permit the defendant to raise a counter claim against the plaintiff at the appellate stage. The counter claim, if at all, could be permitted, by virtue of order 8 Rule 6A of the Code of Civil Procedure, before the first hearing of the suit. Reliance has been placed on the reported judgment of the apex Court AIR 1987 SC 1395 Mahendra Kumar V State of M.P. to contend that the mandate of law is that the cause of action should arise before the delivery of the defence or before the time limited for delivering of defence has expired. If the petitioners are right in contending that the cause of action had already arisen before the filing of their defence or is a continuing one, in that case they ought to have filed the counter claim before they had delivered their defence or before the time limit for delivering their defence had expired. On the other hand, the present counter claim is being pressed into service at the appellate stage, which cannot be permitted in law. Unquestionably, a counter claim is a substantive remedy available to the defendant; and is not a procedural one, so as to be permitted at any stage of the proceedings, including at the appellate stage, as it is sought to be contended on behalf the petitioners.

6. Mr.Godbole, learned Counsel for the Respondent relied on judgment reported in AIR 1991 Karnataka 283 - Smt.Parvathamma Vs. K.R.Lokanath and ors. (Para 8) to contend that the counter claim can be set up before recording of evidence commences and the same cannot be pressed into service after recording of the evidence has already commenced. He also relied on the judgment reported in AIR 1985 ORISSA 260 - Kashi Biswanath Dev Vs.Paramanda Routrai and ors. to contend that there is bar for preferring a counter claim long after the filing of the written statement and after closing of evidence in the suit. Reliance is also placed on the decision of this court reported in 1986 Mh.L.J. 295. In the said decision this court has held that the application was preferred after expiry of limitation the court was justified in rejecting the same.

7. Taking any view of the matter it is not open for the Petitioners to amend the pleadings so as to set up a counter claim against the Respondent-plaintiff at the appellate stage. In the circumstances, I find no reason to interfere with the conclusion reached by the appellate court in rejecting the application below Exh.29.

Petition dismissed. Rule stands discharged. No order as to costs.

Petition dismissed.