AMANULLA Vs. ZAHEER KHAN

JUDGEMENT

(1.) INVOKING the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the plaintiff - applicant has called in question the propriety of the order dated 31.8.99 passed by the learned First Civil Judge Class -1, Satna in Civil Suit No. 34 -A/98.

(2.) THE facts as have been unfolded are that the petitioner as plaintiff instituted the aforesaid civil suit (the suit was re -numbered from time to time and the last number being C.S. No. 34 -A/98) seeking declaration of right, title and interest over the suit land and for issuance of permanent injunction restraining the defendants from interfering with his possession. The defendants entered contest and filed separate written statements. It is worth noting here that the learned trial Judge passed an order of temporary injunction on 2.12.1992 in favour of the plaintiff. The said order was assailed in Misc. Civil Appeal which was dismissed on 8.10.98. Thereafter, as alleged by the defendants the plaintiff forcibly took over possession on 1.1.99. After this development the defendants filed an application for amendment of the written statement.. It was stated in the application for amendment of written statement that apart from taking over forcibly possession the other facts which had come to the knowledge are that the suit land was evacuee property which was allotted to one Tarachand and it was purchased by Kadir Khan from Tarachand on 3.1.88. On the aforesaid basis a counter -claim was advanced that the defendants No. 1 and 2 were in possession of the suit land from the very beginning but they are dispossessed on 1.1.99. and hence, there should be declaration that the defendants No. 1 and 2 are the owners of the land and are further entitled to recover possession. The said application was resisted by the plaintiff on the ground that the cause of action for the counter claim had arisen on 1.1.99. and therefore, the same is not entertainable as per the provisions enshrined under Order VIII Rule 6A of the Code.

(3.) I have heard Mr. Sanjay Agrawal, learned counsel for the applicant, and Mr. Sanjay S. Agarwal, learned counsel for the non -applicants. Criticising the impugned order it is submitted by Mr. Sanjay Agrawal, that the amendment pertaining to counter -claim could not have been allowed as it is plain as noon day that the cause of action had arisen much after the filing of the written statement. Submission of the learned counsel for the petitioner is that the provision enshrined under Order VIII Rule 6 -A has to be strictly construed but the learned trial Judge had fallen into error by not applying the true import of the aforesaid provision. The learned counsel has also submitted that the decision rendered in the case of Chaturbhuj Savariya (supra) has not been properly understood by the Court below. Mr. Sanjay S. Agrawal. learned counsel for the non -applicants has supported the order passed by the Court below.