- (1.) PRADEEP Kant, J. Being aggrieved by an order of the learned 1st Additional Civil Judge (Jr. Div.), Hardoi allowing the application of the defendants under Order 6 Rule 17 read with Sections 151 and 153 of the Code of Civil Procedure for amendment of the written statement as well as lodging a counter claim, which order was confirmed by the learned revisional Court, the plain tiff/petitioner has approached this Court by means of the present writ petition.
(2.) THE plaintiff/petitioner had filed a suit for permanent injunction on 17-10-95 against opposite parties 3 to 6 restraining them from interfering in his possession over the house in dispute. THE petitioner has based his claim on a Will said to have been executed by Dr. Keshav Prasad on 13-5-1999 in his favour. THE specific case of the plaintiff/petitioner is that Dr. Keshav Prasad, father of opposite parties 3 to 6 was bhumidhar of certain agricul tural land and also owned a house, which is in dispute, Dr. Keshav Prasad executed a Will on 12-5-1980 in favour of the mother of the petitioner and the name of the mother of the petitioner was also mutated over the agricultural land in proceedings under Section 12 of the U. P. Consolidation of Holdings Act on 25-94995. Sub sequently Dr. Keshav Prasad allegedly ex ecuted a Will on 13-5-1995 in favour of the petitioner with respect to the house in dis pute. Dr. Keshav Prasad died on 19-5-1995. In the written statement filed by opposite party No. 3 while refuting the claim of the petitioner pleaded that Dr. Keshav Prasad was the owner of the house in question which remained in his possession throughout his life and after his death, the same devolved upon his legal heirs, as the property belonged to Joint Hindu Family. It was also pleaded that the Will in question was fictitious, concocted, baseless and was a result of the fertile litigative mind of the petitioner. Allegations regarding fraudulent execution of this Will was also made. It appears that the Will was not filed alongwith the plaint but was filed on 30-11-1995 in the Court. On filing of the alleged Will said to have been executed in favour of the petitioner, defendants filed an application under Order 6 Rule 17 read with Sections 151 and 153 of the Code of Civil Procedure praying that certain amendments be incorporated in the writ ten statement and a counter claim with respect to the declaring 'hat the Will dated 13-5-1995 was a nullity and void and for its cancellation was filed. The trial Court al lowed the said application and the revisional Court dismissed the revision filed by the plaintiff/petitioner. Learned Counsel for the petitioner Sri Mohd. Arif IChan strenuously urged that the counter claim could not have been allowed, as it was barred by limitation in view of the provisions of Order 8 Rule 6-A of the Code of Civil Procedure. The next objection to the amendment urged by the learned Counsel for the petitioner is that the amendment allows the defendants to resile from their admission, which has been made in the written statement, which is not permissible under law.
(3.) SO far as the plea regarding counter claim being barred by limitation is con cerned, learned Counsel placed reliance upon the provisions of Order 8 Rule 6-A of the Code of Civil Procedure and asserted that the counter claim could have been filed only between the period commencing from the filing of the suit and delivery of defence. The submission is that once the written statement is filed the counter claim could not have been set up and that too after such a long time. Reliance in this regard has also been placed upon the case of Ram Pyare Singh and others v. 1st Additional District Judge, Gorakhpur and others, 1997 (1) ARC 459. In this case a counter claim was filed after 11 years and the High Court, after finding that the cause of action had accrued between June, 1983 and Oc tober, 1983, held that rejection of the counter claim by the Courts below, was justified. In upholding the judgments of the Courts below the High Court also took notice that while setting up of the counter claim, the defendants had not disclosed nor had explained the inordinate delay in seeking the amendment after 11 years. The Court did not enter into the question as to whether the counter claim was barred by limitation on the ground that the claim itself was lodged after inordinate delay for which no explanation was given. In this case also it has been held that Order 8 Rule 6-A of the Code of Civil Procedure docs not exclude the applicability of Limitation Act and, therefore, the counter claim could be filed after the period prescribed under Rule 6-A of Order 8 of the Code of Civil Procedure but the delay in lodging such counter claim should be properly explained. The apex Court in the case of Mahendra Kumar and another v. State of Madhya Pradesh and others, AIR 1987 SC 1395, while considering the question regarding limitation in lodging a counter claim held : ". . . . . . . . . . . . . . . . . . . . . Rule 6-A (1) 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 defen dant before the defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A (1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A (1), Civil Procedure Code. As the cause of action for the counter claim had arisen before the filing of the written state ment, the counter claim was, therefore, quite maintainable. Under Article 113, Limitation Act. 1963, the period of limita tion 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 Scheduled. It is not disputed that a counter claim, which is treated as a suit under Section 3 (2) (b), Limitation Act, had been filed by the ap pellants within three years from the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong in dismissing the counter claim. " In the instant case, the plain tiff/petitioner had not filed the Will on the basis of which he was claiming his title over the house in question and it was only on 30-11-1995 that the Will was filed. "the defendants had. no occasion to look into the said document earlier and when they were confronted with the same, the cause of action accrued in their favour to chal lenge it. In these circumstances, the defen dants set up a counter claim on 20-1-1997. The counter claim could be filed even after filing written statement, as has been held by the Apex Court as well as by this Court and as also flows from the correct and just interpretation of the provisions of Rule 6-A of Order 8 of the Code of Civil Proce dure. The counter claim, in the instant case, having been filed within three years from the date the cause of action had ac crued cannot be. said to be barred by limita tion. The revisional Court has also found that the counter claim was not barred by limitation, as the period for challenging the Will had not expired from the date when it came to the knowledge of the defendants. I do not find any discrepancy in the order passed by the Courts below in allowing the counter claim set up by the defendants.;