JUDGMENT
S. Nayer Hussain, J.
1. Heard learned counsel for the parties.
2. The petitioner is Defendant No. 1 in Title Suit No. 11 of 1989 which was filed by Opposite Party Second set for declaration of title, recovery of possession and also for declaration that Defendant No. 1 was a monthly tenant as well as for arrears of rent.
3. This revision is directed against the order dated 26.2.1999 passed in the aforesaid suit by which the learned Subordinate Judge-II, Khagaria, allowed the prayer of defendant No. 3 (O.P. No. 1) for amendment of the written statement making counter- claim in the suit against defendant No. 1.
4. The learned counsel for the petitioner submits that the suit was filed in the year 1989 whereafter the defendant No. 1 Petitioner appeared and filed his written statement claiming his independent right and title over the suit property. Thereafter, Opposite Party No. 1 appeared in the suit and filed an intervention petition for impleading him as a party in the suit. The said petition was allowed and he was impleaded as Defendant No. 3 by order dated 16.2.1996, whereafter he filed his written statement on 25.3.1996.
5. The learned counsel for the petitioner further submits that all the parties led their evidence whereafter the evidence was closed by the Court below and on 15.12.1998 argument of Defendant No. 1 (Petitioner) started and it continued for four dates whereafter on 6.1.1999 Defendant No. 3 filed an amendment petition to which the plaintiffs filed their rejoinder on 28.1.1999 whereas Defendant No. 1 (Petitioner) filed his rejoinder on 4.2.1999. Finally, the Jearned Court below allowed the said amendment petition by the impugned order dated 26.2.1999.
6. The learned counsel for the petitioner challenges the said order dated 26.2.1999 on two grounds first that by the said amendment Opposite Party No: 1 (Defendant No. 3) wanted to raise the counter-claim against the co-defendant, namely, Defendant No. 1 (Petitioner, which can not be allowed and the second that such extensive amendments while arguments were going on in the suit should not have been legally allowed as it was only meant for scoring an advantage over Defendant No. 1 (Petitioner), hence, he claims that the impugned order is illegal, arbitrary and perverse.
7. On the other hand, the learned counsel for Opposite Party No. 1 vehemently opposes the contention of the learned counsel for the petitioner and submits that there is no error of jurisdiction in the impugned order and the learned Court below has exercised its discretion in accordance with law. The learned counsel for O.P. No. 1 rules upon a decision of Hon’ble Apex Court in case of Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors., , in which it was held that counter-claim is equivalent to a cross suit in which the defendant can raise all the points as a plaintiff can raise in an independent suit. The learned counsel for O.P. No. 1 further states that since he had stated before the learned Court below that he does not want to examine any witnesses nor he want as to call any witness of the plaintiff for cross- examination, hence it will not affect the early disposal of the suit nor the other defendants or the plaintiff would have any dis-advantage as he has already advanced all his claims in his written statement and the amendment was only to remove the technical defects and chanelise the claims in the written statement. Hence, he suomits that the impugned order does not require any interference.
8. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the provision of Order VIII Rule 6(A) of the Code of Civil Procedure does provide that a defendant in a suit may set up any counter-claim against the claim of the plaintiff before (sic) hearing of the suit, but before the defendant has delivered his defence. From the aforesaid provision of law, it is quite apparent that a right has been given to the defendant to set up counter-claim against the claim of the plaintiff and not against the claim of a co- defendant. But here in the instant case Defendant No. 3 (OP. No. 1) wants to introduce counter-claim against a co-defendant, namely, Defendant No. 1 (Petitioner) which, in our view, should not have been allowed. So far the decision relied upon by the learned counsel for O.P. No. 1, namely, Jag Mohan Chawla and another (supra) is concerned, in that case also the counter-claim which is referred therein is against the claim of the plaintiff and not against the claim of any of the co-defendants of that case.
9. Furthermore, from perusal of the amendment petition (Annexure-1) it appears that it has been filed under the provision of Order-VI Rule 17 of the CPC and by the said amendment he wants to add six paragraphs of statements of facts bringing on record several facts and a fresh valuation as well as find new reliefs. In my view, such amendments can not be legally allowed while arguments are going on which only leads to the conclusion that Defendant No. 3 wants to score an advantage over the plaintiff and his co-defendants as Defendant No. 3 might have led his evidence on those facts, but there was no opportunity to the other parties to lead their evidence on those points, if they so liked. Hence, only due to the fact that the amendment will not affect speedy trial of the suit, it can not be a ground for allowing the amendment specially when the trial was at its concluding stage and there was no conclusion of the learned Court below that inspite of due diligence Defendant could not raise the matter earlier.
10. In the aforesaid facts and circumstances of this case, this Civil Revision is allowed, the impugned order is set-aside and the learned Court below is directed to reject the amendment sought by Defendant No. 3 and proceed with the suit for its early adjudication.