D. L. MEHTA, J. - (1.) THIS revision petition is directed against the order dated 23. 11. 1989, passed by the learned Addl. Civil Judge, No. 1, Alwar, refusing the application filed by the defendant under 0. 6 R. 17 C. P. C. for the amendment of the written statement.
(2.) PLAINTIFF instituted a suit against the defendant and prayed therein that the defendant should be ejected from the rented premises on the ground of default in the payment of rent, material additions, alterations reduction in the value of the property and some other allied matters. During the pendency of the suit directions were given by the court that the petitioner defendant has failed to make the payment of rent during the pendency of the suit as provided under the law as such the defence should be struck off. A revision petition was preferred against that order and in the revision petition also the order was maintained as far as which relates to the part striking of the defence. Mr. Lodha, appearing for the petitioner submits that under order 6, Rule 17, the application was filed and it should be considered that it was filed within reasonable time and in alternative submits that in the matter of fixation of the standard rent, the cause of action is a continuous one and he has a right to move to the court for the fixation of the standard rent. Mr. Lodha further sub-mits that after the decision of this court, in the revision petition the plaintiffs abondoned their amount of material alterations, reduction in the value and other allowed grounds. He further submits that in the changed circumstances it has become more necessary to file an application. Apart from that he wants to make a submission that he has made some payment under S. 19-A and he has a right to make adjustment for the same. During the trial he made some payment, but he will have to prove it. On the other hand, Mr. Mathur, learned counsel for the non-petitioners submits that the revision petition is not maintainable as the counter claim cannot be filed after the submission of the written statement. He has relied upon some rulings of the different High Courts, to substantiate his points. Mr. Lodha, learned counsel for the petitioner on the other hand, relied upon the judgment of this court given in the case of M/s. Kaycee Sons Electronical Engineers Vs. Dr. Smt. Malti Saxena, (1 ). He has also relied upon the judgment of the Hon'ble Supreme Court given in the case of Mahendra Kumar Vs. State of Madhya Pradesh (2 ). Hon'ble Supreme Court, has discussed various judgements of the High Courts and held that the counter claim can be filed after filing of written statement. The controvercy which existed prior to this decision on account of different decisions of the various High Courts has been set at rest by the Hon'ble Supreme Court. The question before me is now about the applicability of the judgment of the Hon'ble Supreme Court, in the facts and circumstances of the case. Mr. Mathur, submits that O. 8 Rule 6-A, provides that 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. He further submits that this right is given to the defendant and the defendant can have an option to agitate his right by way of counter claim or by way of separate suit. He further submits that the word "may" has been used for various reasons including that when a counter claim is submitted at a belated stage instead of meeting requirements of the justice it may delay the disposal of the other cases also. He further submits that in the instant case, the suit was filed in the month of September, 1980 and the written statement was filed in the month of January, 1988. He further submits that more than 8 years have passed after filing of the written statement and the delay of 8 years is fatal in the matter of entertaining the counter claim at the stage of the final arguments. He further submits that the counter claim can be entertained only before the defendant has delivered his defence or before the time limit for delivering the defence has expired. He further submits that the stage of arguments only comes when the defendant delivers the defence or does not intend to deliver the defence. He further submits that for this reason, though counter claim can be entertained by the court before the delivery of the defence and in the instant case, it cannot be entertained. Mr. Mathur, has further submitted that in case, the defendant is allowed to submit the counter claim after passing 8 years and at the stage of counter claim, his clienet will loos benefit of 8 years it has resulted in approaching near the decision of the case. I have heard the rival contentions made by the learned counsel for both the parties and the prepositions laid down by this court in the case of M/s. Kaycee Sons Electronical Engineers Vs. Dr. Smt. Malti Saxena, (Supra) is a good preposition of law and I agree with it. I also follow the prepositions of law laid-down by the Hon'ble Supreme Court in the case of Mahendra Kumar Vs. State of Madhya Pradesh (Supra ). As far as the question of applicability of the preposition laid down by the Hon'ble Supreme Court and this Court is concerned. I am of the view that the option has been given to the defendant either to file the counter claim or to file a separate suit and this option must be exercised by the defendant within a reasonable time. May be after filing of the written statement. In the instant case, the case is fixed for final agruments and more than 8 years have passed, after filing of the written statement. Taking note of the delayed application and the fact that the case is listed for the final arguments if the permission is granted to the petitioner to amend the written statement it will result injustice to the non-petitioner plaintiffs.
(3.) IN the result, the prayer relating to the counter claim in the matter of fixation of the standard rent is concerned, is rejected. I am of the view, that the court-below has rightly rejected this part of the prayer. As far as the payment made or the amount deposited in court during the pendency of the suit is concerned, it is not only the function of both the parties, but it is also the function of the court to see that the accounts are properly maintained and judicial notice is taken of the payment so made. If there is any discripency in the account relating to the payment in the court or payment by way of depositing in the court, the petitioner will be at liberty to point out the discripency without amendment of the written statement and the court shall scrutinise the account and where ever the discripency is found it will take judicial notice and rectify the mistake if any in the calculation. As far as the payment made under S. 19-A, is concerned, the court has already discusssd however, I am of the view, that the petitioner should be allowed to produce the relevant record by way of production of the certified copies of the deposit under S. 19-A, and the court will take judicial note of it after hearing both the parties and will decide the controversy if any without amendment. It is also a function of the court to take note of the payment so made in the court under S. 19-A of the Rajasthan Premises and Rent Control Act, if pointed out by any of the party. In the result, I do not find any error of law in the order of trial court, the revision petition is disposed of accordingly with the observations made above. ;