JUDGMENT
M.M. Kumar, J.
1. This revision petition filed under Section 115 of the Code of Civil Procedure (for brevity, the Code) challenges the order dated 13.3.2001 passed by the Civil Judge (Junior Division), Faridabad allowing the application of defendant-respondent No. 1 filed under Order 6 Rule 17 read with Order 8 Rule 6-A and Section 151 of the Code.
2. Brief facts necessary for deciding the controversy raised in this petition are that plaintiff-petitioner has filed a suit for permanent injunction against defendant-respondent No. 1 and another. Defendant-respondent No. 1 filed his written statement and also raised a counter claim asserting that the plaintiff-petitioner is a trespasser and has been occupying the shop in dispute illegally and unlawfully. It has further been averred that the plaintiff-petitioner has no right, authority or title to continue in the shop in question. Defendant-respondent No. 1 has prayed for a direction to the plaintiff-petitioner to hand over the vacant physical possession of the shop to him. An application for amendment of the counter claim has been made under Order 6 Rule 17 read with Order 8 Rule 6-A read with Section 151 of the Code proposing to incorporate the word possession after the word decree and before the word mandatory injunction. It has been averred in the application that by over-sight, relief for possession could not be pleaded in the counterclaim which is sought to be incorporated in the pleadings. The application was opposed on the ground that the relief for possession was barred by limitation and it would change the nature of the controversy. In the counterclaim which is originally made, it has only been pleaded that the plaintiff-petitioner is a trespasser and is occupying the shop in dispute illegally and unlawfully, on that basis, it was prayed that he cannot continue to be in occupation. It was further prayed that physical possession of the shop in question be handed over to defendant -respondent No. 1. The Civil Judge allowed the application by recording the following order: –
“After hearing the rival contentions, I am of the considered view that counter claim is a distinct and separate plaint. Even if a suit is dismissed counter claim survives & could be dismissed or rejected. That is, for all purposes, counter claim/ petition has to be treated as a distinct and separate plaint. I am agreed with the contention of counsel for the plaintiff that some limitation has been given under order 8 Rule 6-A to file the counter claim by the defendant/counter claimant. Vide Order 8 Rule 6-A counter claim could be filed before or after the filing of the suit but before the defendant has delivered his defence or before the time limited (sic- -?) for delivering his defence has expired. Admittedly, in the present case, the limitation for filing counter claim has been expired as both the parties have already led their respective evidence.
The next question that arises for consideration is that whether applicant wants to file fresh counter claim or wants to file amendment which does not change the nature of the counter claim and necessary for rightful adjudication of the controversy involved in the counter claim. The controversy in the present counter claim is regarding handing over of suit property to the counter claimant by the plaintiff. The applicant only proposed to incorporate the words “possession” after decree and before the word mandatory injunction. It is settled proposition of law that a suit of mandatory injunction could be converted into possession and vice-versa, I am agreed (sic-?) with the citations relied upon by the applicant reported in 1991(1) PLJ 379 (Supra) and 1999 (4) RCR(Civil) 191 (supra). Further I am not agreed (sic-?) with the contention of counsel for the plaintiff that valuable right has accrued in his favour. In the present case filed by the plaintiff is not based on tile (sic-?) and a suit for possession could be prayed against a trespasser at any time. Even otherwise on merits 12 years time has not been lapsed since the occupation of the plaintiff over the suit property. Citations relied upon by the counsel for the plaintiff are not applicable to the facts of the present case. Therefore, it is clear that in the present amendment application the counter claimant (sic) wants to carry out amendments which are necessary for the rightful
adjudication of the controversy involved in counter claim and not to file fresh counter claim.
Lastly, I am further not agreed (sic-?) with the contention of counsel for the plaintiff that counter claim could not be oust the pecuniary jurisdiction of the Court. I further draw my support from Gurbachan Singh v. Bhag Singh and Ors., reported in 1996(3) R.C.R. (Civil) 378 (Supreme Court) wherein it was clearly held that by raising counter claim beyond the pecuniary jurisdiction of the Court, Court could not be divested of its jurisdiction to entertain the suit.”
3. I have heard Shri Lokesh Sinhal, learned counsel for the plaintiff-petitioner and Shri Kulbhushan Sharma, learned counsel for defendant-respondent No. 1 and have perused the record with their assistance.
4. Shri Lokesh Shinhal, learned counsel for the plaintiff-petitioner has argued that amendment of the counter claim has been allowed by the impugned order on 13.3.2001 on the basis of an application filed on 17.1.2001. According to learned counsel, the Civil Judge has heard the arguments on 16.1.2001 and the case was fixed for orders on 17.1.2001 when the application for counter claim was filed. The learned counsel has placed reliance on a judgment of this Court in the case of Food Corporation of India v. Krishna Rice & General Mills, (1990-2)98 P.L.R. 383 and argued that once the arguments have been concluded and the case has been fixed for arguments on 17.1.2001, then no application seeking amendment could have been entertained. His next submission is that the proposed amendment seeking the relief of possession is barred by limitation as according to the provisions of Order 8, Rule 6-A of the Code, counter claim could only be filed before the defendant had delivered his defence, whereas in the present case defendant-respondent No. 1 had not only closed his defence, even the final arguments were heard on 16.1.2001. Another argument raised by the learned counsel is that if the amendment in the counter claim is allowed, then the Civil Judge would be divested of his pecuniary jurisdiction.
5. Controverting the arguments, Shri Kulbhushan, Sharma, learned counsel for defendant-respondent No. 1 has submitted that the expression at any stage used in Order 6, Rule 17 of the Code, has to be liberally construed even to cover the stage when the case is fixed for pronouncement of order. In support of his submission, the learned counsel has placed reliance on a judgment of this Court delivered in the case of Manohar Lal v. Smt. Lajwanti and Ors., 1990(1) Rev.L.R. 206 : 1990 P.L.J. 244 and a judgment of Allahabad High Court in the case of Om Rice Mill, Jaspur and Ors. v. Banars State Bank Ltd. Kashipur and Anr., 2000(3) Civil & Rent Judicial Reports 102 and argued that delay itself would not constitute a valid basis to refuse amendment if the Court has reached the conclusion that amendment is necessary for proper adjudication of the rights of the parties which is subject matter of the suit and the counter claim. He has gone to the extent of arguing that even at the stage of second appeal, amendment of the plaint has been allowed by this Court wherein condition was imposed that the appellant was not to lead any oral evidence. He has relied upon a judgment of this Court in the case of Mukand Lal and Anr. v. Khushal Singh and Ors., (1988-2)94 P.L.R. 121 where amendment of the plaint was allowed even at the stage of second appeal. According to the learned counsel the amendment incorporating the relief of possession as claimed in the counter claim would not attract the bar of limitation and also would not oust the jurisdiction of the Civil Judge. According to the learned counsel, the provisions of Order 8, Rule 6-A of the Code do not impose any bar of limitation on the amendment sought to be incorporated by defendant-respondent No. 1. For this proposition, he has placed reliance on two judgments of the Supreme Court in Jag Mohan Chawla v. Dera Radha Swami Satsang, (1996-3)114 P.L.R. 308 (S.C.) and Gurbachan Singh v. Bhag Singh and Ors. (1996-2)113 P.L.R. 674 (S.C.). He has argued that incorporating the relief of possession seeking amendment under Order 6, Rule 17 of the Code cannot be defeated on the ground of delay alone and placed reliance on a judgment of this
Court in the case of Parkash Chand v. Shri Sat Narain Mandir, (1999-1)121 P.L.R. 23. He has also placed reliance on a judgment of the Supreme Court in the case of Indica v, Arumuga, 1999(1) Recent Civil Reports 609 and argued that under Article 65 mentioned in Schedule 11 of the Limitation Act, 1963, a period of 12 years has been provided for seeking possession of immovable property or any interest therein and has also placed reliance on a judgment of this Court in the case of Sardara Singh and Anr. v. Shrimati Gulwanti Kaur and Ors., (1989-1)96 P.L.R. 672. According to the learned counsel there is nothing on the record to show that by incorporating the relief of possession, the Civil Judge would be divested of jurisdiction by exceeding the pecuniary limits.
6. Before adverting to the respective submissions raised by learned counsel for the parties, it would be advantageous to refer to the provisions of Order 6, Rule 17 and Order 6-A of the Code:-
ORDER VI
PLEADINGS GENERALLY Rule 1 to 16 —
17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
ORDER VIII
[WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM]
Rule 1 to 6 –
[6-A, 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.
7. A perusal of Order VI Rule 17 of the Code makes it obvious that the Court has been given a wide discretion to allow either party to amend the pleadings in such manner and terms as it may consider just and necessary. However, it also imposes a condition that such an amendment should be considered necessary for the purpose of determining the real question in controversy between the parties. Therefore, whether an amendment could be permitted at a particular stage or not has been left to the view of the Court. In cases where the Court feels it necessary that without amendment the real controversy raised before it could not be decided, the amendment has to be allowed on such terms as the Court may like to impose including imposition of costs. Delay in such cases would not be of any consequences unless it is shown that the amendment sought is mala fide and it would introduce altogether a new cause of action which is contradictory to the cause of action already pleaded. The preponderance of various judgments of the Supreme Court in the case of Manohar Lal v. N.B.M. Supply Gurgaon, 1969(1)
S.C.C, 869 and the latest judgment of the Supreme Court in the case of Prem Bakhshi and Ors. v. Dharam Dev and Ors., (2002-1)130 P.L.R. 558 (S.C.) may also be referred to. The observations of the Supreme Court in Prem Bakhshi’s case (supra) read as under:-
“6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No. 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party.
7. From the facts extracted above it would show that appellants only wanted to bring to the notice of the Court the subsequent facts and after amendment of the plaint, respondent No. 1 would get opportunity to file written statement and he would be able to raise all his defence. Ultimately if the suit is decided against the respondent No. 1, he would have a chance to take up these points before the Appellate Court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent No. 1, as stated above, is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under Clause (b).”
8. A perusal of the provisions under Order 8, Rule 6-A of the Code does not in terms imposes any period of limitation. On the contrary, the wide language used in the order shows that any claim could be set up which may be subject matter of an independent suit and it further shows that the counter claim does not need to have any nexus with the cause of action pleaded by the plaintiff in his suit. The judgment of the Supreme Court in the case of Mahendra Kumar v. State of M.P., (1987)3 S.C.C. 265 does not deal with amendment of the counter claim but merely postulates that a counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence has expired. The argument raised on behalf of the plaintiff-petitioner that as the amendment for counter claim has been filed after the defence has been disclosed by the defendant and written statement has been filed, stands specifically rejected by the Supreme Court in Mahendra Kumar’s case (supra). The observations of their Lordships read as under:-
“The High Court erred in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore, quite maintainable. Under Act, 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. A counter claim, which is treated as a suit under Section 3(2)(b) of the Limitation Act has been filed by the appellant within three years from the date of accrual to them of the right to sue. The District Judge and the High Court were wrong in dismissing the counter claim. The question of filing a counter claim arises after a suit is filed by the claimant under Section 8. It may be that there is no substantial difference between a counter-claim and a suit, but nonetheless Rule 6-A(1) of Order VII CPC does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limit for delivering his defence has expired, whether such counter claim is in the nature of a
claim for damage or not.”
9. Having prefaced the consideration of respective submissions of the learned counsel with the observations of the Supreme Court for liberal construction of Order VI, Rule 17 of the Code and the law that the amendment ordinarily would not prejudice the rights of the opposite party and also the correct interpretation of Order 8, Rule 6-A of the Code, the first submission of the learned counsel for the plaintiff-petitioner may be examined. It is based on the stage where the amendment is to be allowed. From the various judgments relied on by the learned counsel for defendant-respondent No. 1 and the view that liberal construction has to be placed on the provisions of Order 6, Rule 17 of the Code, it must be held that amendment could be allowed at any stage including the stage of arguments and even when the case is at appellate stage. The only limitation which could be read on the exercise of discretion by the Court is that it must reach the conclusion that amendment is necessary for proper adjudication of the issue involved. The view that amendment could be carried on at any stage including the appellate stage is amply supported by the Supreme Court in the case of Ishwardas v. The State of Madhya Pradesh and Ors., A.I.R. 1979 S.C. 551. The observations of their Lordships read as under:-
“We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration befoie an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why if was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted then otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.”
10. In view of the above clear enunciation of law and the observations made by the Supreme Court in Prem Bakhshi’s case (supra). I have no hesitation in rejecting the first argument of the learned counsel. However, reliance of the learned counsel on a judgment of this Court in the case of Food Corporation of India (supra) is wholly misplaced because no finding has been recorded by the Civil Judge reaching the conclusion that the amendment was necessary for adjudication of the case. Moreover, the reasoning adopted in the judgment of Food Corporation of India (supra) that after the arguments have been heard, no proceedings could be deemed to be pending, cannot be approved because the proceedings would continue to be pending till the judgment is pronounced.
11. The other argument of the learned counsel that the amendment sought is hit by the bar of limitation, is based primarily on the provisions of Order 8, Rule 6-A of the Code which has already been considered and rejected. Even otherwise, under Article 65 of the Schedule of the Limitation Act, 1963, a period of 12 years has been provided for seeking relief of possession. The plaintiff-petitioner has failed to place on record any material to show that period of 12 years has expired. Learned counsel has also failed to substantiate his argument that the amendment would, if allowed, divest the Civil Judge of his jurisdiction as it would exceed his pecuniary jurisdiction. Therefore, there is no substance in the arguments raised by the learned counsel for the plaintiff-petitioner and the revision petition is liable to be dismissed.
12. Before parting, it is appropriate to point out that in view of the law discussed in Mahendra Kumar’s case (supra), the conclusion reached by the Civil Judge that limita-
tion under Order 8, Rule 6-A of the Code has expired, has to be set aside because the plea of possession sought to be added by amendment was available before filing the written statement pleading counter claim by defendant-respondent No. 1. The import of the provisions of Order 8, Rule 6-A of the Code is not that after the written statement is filed, no counter claim could be raised. The correct position is that any cause of action concerning counter claim arising after filing the written statement could not be made subject matter of the counter claim. Therefore, the findings of the Civil Judge in paragraph 8 are set aside.
13. For the reasons recorded above, this revision petition fails and the same is dis
missed. Order dated 13.3.2001 is upheld except the interpretation of Order 8, Rule 6-A
of the Code. The Civil Judge is now directed to proceed with the hearing of argu-
ments.The parties through their counsel are directed to appear before the trial Court on
6.5.2002.