This is a writ petition seeking to set aside a Civil Court order rejecting an application to amend a written statement and plead a counter claim. The High Court dismissed the writ petition, holding that no interference is warranted as the application was filed after evidence commenced.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF NOVEMBER, 2022
BEFORE
THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD
WRIT PETITION NO.902 OF 2021 (GM – CPC)
BETWEEN:
SMT. DOLLY JOHN W/O P.V.JOHN AGED ABOUT 63 YEARS RESIDING AT NO.103/29, 1ST MAIN, 5TH CROSS, MAHALAKSHMIPURA, BENGALURU - 560086
…PETITIONER
(BY SRI.K.VIAJAYA KUMAR & SMT.KUSUMA P., ADVOCATES)
AND:
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RESPONDENTS NO.2 TO 9 ARE RESIDING AT NO.89, 3RD CROSS BHOVI PALYA, MAHALKSHMIPURAM, BENGALURU - 560 086
…RESPONDENTS
(BY SRI.S.P.SHANKAR, SENIOR COUNSEL FOR SMT. MAMATA G. KULKARNI, ADVOCATE FOR R-1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 08.12.2020 PASSED ON IA.NO.2 UDNER ORDER VI
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RULE 17 R/W SECTION 151 OF CPC VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE IA NO.2 FILED BY THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the first defendant in O.S.No.1401/2014 on the file of the III Additional Civil Judge, Bengaluru Rural District, Bengaluru, (for short, 'the civil Court' ). The petitioner has impugned the Civil Court's order dated 08.12.2020, and the civil
Court by this order has rejected the petitioner's application (IA.No.II). This application is styled as an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 ( CPC ), but the learned counsel for the petitioner is categorical, even when repeatedly queried, that in view of the contents of this application, the same must necessarily be construed as an application filed under Order VIII Rule 6(A) of CPC for leave to file counter claim.
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application testing this application as against the requirements of Order VI Rule 17 of CPC observing that this application is filed post commencement of evidence and the petitioner cannot insist on amending the written statement as a matter of right. The civil Court's reasoning in this regard is in paragraph 11 of the impugned order which reads as under:
11- Now, the defendant No.1 has filed the present application to amend the written statement and seeking permission to plead claim counter claim in the written statement only. Apart from this on perusal of the pleadings and also the pleading in O.S.No.1356/2014 it can be noticed that the facts which the defendant No.1 is intending to bring on record were within the knowledge of the defendant No.1 at the time of filing of the written statement. Moreover all those facts are pleaded by defendant No.1 in O.S.No.1356/2014. This court after framing the issues has posted the case for plaintiff evidence. Therefore,
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there is no change of circumstances and already trial has been commenced. Therefore, at this juncture the defendant No.1 cannot claim the amendment as sought in her application."
for the petitioner, and Sri. S.P.Shankar, the learned Senior Counsel who appears for Smt. Mamata G.Kulkarni, the learned counsel on record for the respondents, are unanimous that an application for leave to file counter claim must be considered in the light of the Supreme Court decision in Ashok Kumar
Kalra v. Wing CDR Surendra Agnihotri and Ors. reported in 2020 (2) SCC 394 and the latter decision in Civil Appeal No.7203/2022 between Mahesh Govindji Trivedi v. Bakul Maganlal Vyas & Ors.
Ashok Kumar's case (supra), which is reiterated by the subsequent decision per majority , a request to include counter claim can be considered until the
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Issues are framed, but as per His Lordship, Hon'ble Mr. Justice Mohan M. Shanthanagoudar, under exceptional circumstances, a counter claim can be considered prior to commencement of evidence; however such request cannot be considered after commencement of evidence. In the present case, Issues are framed on 13.07.2016 and evidence is commenced on 11.07.2017 while application is filed on 17.10.2017. As such, this Court must opine that the civil Court’s order cannot be interfered with. However, the petition must be disposed of observing that the petitioner shall be at liberty to commence a
fresh suit subject to all just exceptions in law.
The petition stands disposed of accordingly.
SD/JUDGE
MKM
2 issues framed by the court
Whether the High Court ought to interfere with the Civil Court's order rejecting the petitioner's application to amend written statement and plead counter claim after commencement of evidence.
Whether leave to file a counter claim can be granted after the commencement of evidence in a civil trial.
Colour shows how this judgement treated each authority
Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri and Ors.Referred¶43
Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri and Ors. reported in 2020 (2) SCC 394 · Who else cites this
Mahesh Govindji Trivedi v. Bakul Maganlal Vyas & Ors.Referred¶44
Civil Appeal No.7203/2022 between Mahesh Govindji Trivedi v. Bakul Maganlal Vyas & Ors.
4 provisions across 2 enactments
Dolly John
Rajani Sathyanarayana
Ramachandrappa
Krishna Kumar
Gopal
Govindaraj
B.M. Shyam Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
