MOHAMMED SHA v. NAIJA BEEVI & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938** **OP (FC).No. 73 of 2016 () -------------------------AGAINST THE ORDER IN I.A.NO.111/2016 IN OP.NO.1750/2012** ## **PETITIONER/PETITIONER/2ND RESPONDENT:** **---------------------------------** ## **MOHAMMED SHA** **S/O.ABOOBACKER,RESIDING AT DARUSALAM,POOLAMTHARA,SANTHIGIRI P.O.,THIRUVANANTHAPURAM** **BY ADVS.SRI.N.SUKUMARAN (SR.) SRI.S.SHYAM SRI.N.K.KARNIS SRI.KIRAN PETER KURIAKOSE** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **-----------------------------------** ## **1. NAIJA BEEVI** **W/P.MOHAMMED SHIBU, RESIDING AT** **A.S.MANZIL,MELEMUKKU,POTHENCODE,VEMBAYAM VILLAGE,NEDUMANGAD TALUK,THIRUVANANTHAPURAM-695 584** **2. AZIYA D/O.NAIJA BEEVI(MINOR),RESIDING AT A.S.MANZIL, MELEMUKKU,POTHENCODE,VEMBAYAM VILLAGE,NEDUMANGAD** **TALUK,THIRUVANANTHAPURAM-695 584 REPRESENTED BY 1ST RESPONDENT NAIJA BEEVI.** **3. ALIHASSAN.** **D/O.NAIJA BEEVI(MINOR),RESIDING AT A.S.MANZIL, MELEMUKKU,POTHENCODE,VEMBAYAM VILLAGE,NEDUMANGAD TALUK,THIRUVANANTHAPURAM-695 584, REPRESENTED BY 1ST RESPONDENT NAIJA.** **4. MOHAMMED SHIBU, S/O.ABOOBACKER,RESIDING AT A.S.MANZIL, MELEMUKKU,POTHENCODE,VEMBAYAM VILLAGE,NEDUMANGAD TALUK,THIRUVANANTHAPURAM-695 584.** **R1-R3 BY ADV. SRI.SAJU.S.A** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (FC).No. 73 of 2016 () --------------------------** ## **APPENDIX** **PETITIONER'S EXHIBITS: -----------------------** **EXT.P1:TRUE COPY OF THE APPLICATION FILED BY RESPONDENTS 1 TO 3 AS O.P.NO.1750/2012 ON THE FILES OF THE FAMILY COURT,NEDUMANGAD.** **EXT.P2:TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN EXT.P1 CASE** **EXT.P3:TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN EXT.P1 CASE AS I.A.NO.111 OF 2016 DATED 20.01.2016** **EXT.P4:TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 TO 3 IN EXT.P3 PETITION DATED 23.01.2016** **EXT.P5;TRUE COPY OF THE ORDER DATED 04.02.2016 IN EXT.P3 PETITION.** **EXT.P6:TRUE COPY OF THE JUDGMENT IN OP(FC)NO.524 OF 2015 DATED 01.12.2015 OF THE HON'BLE HIGH COURT OF KERALA.** **RESPONDENTS' EXHIBITS: NIL** **----------------------** **/TRUE COPY/** **P.S TO JUDGE** **cl** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... O.P.(FC).No.73 of 2016 ........................................ Dated this the 21[st] day of February, 2017. ## **JUDGMENT** ## **A.M. Shaffique, J:** This original petition is filed challenging Ext.P5 order by which the Family Court had dismissed an application filed by the petitioner herein to amend the written statement in order to incorporate a counter claim. 2. The main contention urged by the petitioner is that the Court was well within its powers to permit amendment of pleadings and in case an amendment was sought to be incorporated for recovery of possession, a counter claim was raised by way of an amendment seeking recovery of possession of the scheduled property to avoid unnecessary litigation between the parties. The learned senior counsel submits that since the evidence had not commenced in the matter, there was no reason for the Family Court to have rejected the application. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The counter claim had been raised seeking recovery of possession of the petition schedule property. In fact, the cause of action alleged is that the counter petitioners trespassed into the property on 12.7.2012. The petitioner filed a written statement on 21.1.2014. The application for amendment was filed only in the year 2016 and that too when there was a direction by this O.P.(FC).No.73 of 2016 2 Court to dispose of the original petition on or before 20.3.2016. It is in the said circumstances that the Family Court had rejected the application. 4. Order VIII Rule VI A of the Code of Civil Procedure relates to the counter claim, which reads as under: ## _**6A.Counter-claim by defendant:-** (1) A defendant in_ _a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:_ _Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court._ _(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim._ _(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court._ _(4)The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints._ ## 5. From a reading of the provision itself it is rather clear that O.P.(FC).No.73 of 2016 3 the counter claim has to be filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This issue had been dealt by the Apex Court in _**Bollepanda P. Poonacha v. K.M. Madapa**_ (2008 (13) SCC 179 (SC) wherein the Apex Court at paragraphs 11 to 15 held as under: “11.. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned provisions. A right to file counterclaim is an additional right. It may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence. The respondent in his application for amendment of written statement categorically raised the plea that the appellants had trespassed on the lands in question in the summer of 1998. Cause of action for filing the counterclaim inter alia was said to have arisen at that time. It was so explicitly stated in the said application. The said application, in our opinion, was, thus, clearly not maintainable. The decision of _Ryaz_ Ahmed is based on the decision of this Court in _Baldev Singh v. Manohar Singh_ (2006 (6) SCC 498). 12. Further, the facts of the instant case are distinguishable from those of _Ryaz Ahmed_ . In that case, the proposed amendment by the defendant was allowed to be O.P.(FC).No.73 of 2016 4 filed as he wanted to make a counterclaim by way of a decree for grant of mandatory injunction to remove the built-up area on the disputed portion of land. It was therein held that instead of driving the defendant to file a separate suit therefor, it was more appropriate to allow the counterclaim keeping in mind the prayer of a negative declaration in the plaint. However, in the instant case, the counterclaim was purported to have been filed for passing of a decree for recovery of possession of the disputed land after the suit had been filed. 13. _Baldev Singh_ is not an authority for the proposition that the Court while allowing an application for amendment will permit the defendant to raise a counterclaim although the same would run counter to the statutory interdicts contained in Order 8 Rule 6-A. Some of the decisions of this Court in no uncertain terms held it to be impermissible. See _Mahendra Kumar v. State of M.P_ (1987 (3) SCC 265) and _Shanti Rani Das Dewanjee v. Danesh Chandra Day (1997 (8) SCC 174)._ 14. In _Gurbachan Singh v. Bhag Singh_ (1996 (1) SCC 770) this Court clearly held: (SCC p.771, para 3) “3.... the limitation was that the counterclaim or setoff must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time-limit for delivering the written statement has expired, whether such counterclaim is in the nature of a O.P.(FC).No.73 of 2016 5 claim for damages or not.” 15. A belated counterclaim must be discouraged by this Court. See _Ramesh Chand Ardawatiya v. Anil Panjwani (2003 (7) SCC 350)._ We are, however, not unmindful of the decisions of this Court where a defendant has been allowed to amend his written statement so as to enablle him to elaborate his defence or to take additional pleas in support of his case. The Court in such matters has a wide discretion. It must, however, subserve the ultimate cause of justice. It may be true that further litigation should be endeavoured to be avoided. It may also be true that joinder of several causes of action in a suit is permissible. This Court, must however, exercise the discretionary jurisdiction in a judicious manner. While considering that subservance of justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case. The Court, while undoubtedly would take into consideration the questions of serious injustice or irreparable loss, but nevertheless should bear in mind that a provision for amendment of pleadings is not available as a matter of right under all circumstances. One cause of action cannot be allowed to be substituted by another. Ordinarily, effect of an admission made in earlier pleadings shall not be permitted to be taken away. See _State of A.P. v. Pioneer Builders_ (2006 (12) SCC 119) and _Steel Authority_ O.P.(FC).No.73 of 2016 6 _of India Ltd v. Union of India_ (2006 (12) SCC 233) and _Himmat Singh v. ICI India Ltd._ (2008 (3) SCC 571). 6. The learned counsel for the petitioner however places reliance upon the judgment of this Court in _**Eapen Antony v. Joseph**_ (2009 (2) KLT 849) wherein the learned Single Judge had occasion to consider scope and effect of Order VI Rule 17 of the Code of Civil Procedure and held that an amendment can be permitted even at the appellate stage. There is no dispute about the above proposition, but when a counter claim is raised by way of defence, the provisions of Order 8 Rule 6 A squarely apply. At what stage counter claim can be raised has also been considered by the Apex Court. _**In Gayathri Women's Welfare Association v. Gowramma and Another**_ (2011 (2) SCC 330 ) the Apex Court held that a counter claim cannot be permitted to be raised at the appellate stage. 7. Be that as it may, this is an instance where the amendment is sought for by raising a counter claim when the case was ripe for trial. Such practices has ordinarily to be deprecated and the very reason for raising such counter claim is for protracting the matter. In the said circumstances, the Family Court was justified in rejecting the request for amendment of the pleadings. Even if the counter claim is rejected, nothing prevents the petitioner in filing a O.P.(FC).No.73 of 2016 7 separate proceedings on the same cause of action, however, subject to the other legal consequences involved in the matter. Under such circumstances, we do not find any reason to interfere with the order passed by the Family Court. The original petition is dismissed. **Sd/-** **A.M. SHAFFIQUE, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl