S. N. Srivastava, J. - (1.) This writ petition is directed against the order dated 23rd February, 2001, passed by the Additional Civil Judge (J. D.), Gorakhpur allowing amendment of defendant in the written statement as well as counter- claim and permitting plaintiff to file written statement to the counter-claim within 15 days and 'the revisional Court's order dated 26th March, 2001 dismissing the revision preferred against the said order.
(2.) FROM perusal of the record, it transpires that the plaintiff filed a suit for injunction to restrain defendant from opening the door as well as restraining defendant from making any construction over the land in Suit. Further relief claimed in the plaint was to issue a mandatory injunction to Defendant to close the door and windows at the places mentioned in the plaint map. A written statement was filed by the defendant on 13-5-1991 denying plaintiff's allegation in the plaint. It further transpires from the record that the defendant filed an Amendment Application to amend the written statement as well as to add certain reliefs as counter-claim in the year 1998. An objection was filed by the plaintiff to the Amendment Application. By an order dated 23-2-2001, impugned by way of instant writ petition, amendments sought for were allowed and counter-claim was also incorporated in the written statement. A Revision preferred against the said order was also dismissed. Heard learned Counsel for the parties. Learned Counsel for the petitioner urged that according to own averments made by defendant in the Amendment Application, the cause of action of counter-claim arose in June, 1991 whereas Application for amendment to add counter-claim was moved on 20- 11-1998. He further urged that according to Order 8, Rule 6-A (4) of the C. P. C. , the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints, hence Article 113 of the Indian Limitation Act will be applicable for the reliefs claimed for by adding counter through the amendment application and maximum period of limitation is three years for the reliefs claimed as counter-claim introduced through the Amendment Application which is barred by time and no such counter-claim could be permitted to be introduced by way of amendments. It was further urged that the order passed on Amendment Application by which counter- claim was also added may be set aside being barred by time. He relied upon Order 8, Rule 6-A (4) of the C. P. C. and Article 113 of the Indian Limitation Act.
(3.) IN reply to the arguments of learned Counsel for the petitioner, Sri R. B. Tripathi, learned Counsel for Opp. Party- Defendant, did not dispute the fact that the cause of action arose in June, 1991 and Amendment Application by which counter- claim was introduced was moved on 20-11-1998. He also does not dispute proposition of law that limitation for counter-claim by which Defendant prayed to grant mandatory injunction is three years as envisaged under Article 113 of the INdian Limitation Act. He further urged that by the Amendment Application a number of other pleadings in the written statement were also sought to be amended and the amendments introduced through the amendment application allowed by the Trial Court and affirmed by the Revisional Court deserve to be maintained and the writ petition is liable to be dismissed. The relevant date on which the question of limitation could be considered is the date of presentation of the plaint. In case the Defendant wanted to amend written statement by moving an Amendment Application and to introduce counter-claim, the relevant date would be the date of presentation of the Application for Amendment. As a counter-claim is treated as plaint for the relief claimed, it is necessary for the Court to consider the date of its presentation.;