IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.25959 OF 2017 (GM-CPC) & WRIT PETITION NOS.3371-72 OF 2018 (GM-CPC) BETWEEN:
ABIB KHAN, S/O LATE AHAMAD KHAN, AGED 65 YEARS, RESIDING AT TANJAURU MOHALLA, MADDUR ROAD, KUNIGAL TOWN – 572 130.
... PETITIONER (BY SRI. PHANIRAJ KASHYAP, ADVOCATE) AND:
1 . NASEEMA KHANUM, D/O LATE KAREEM KHAN @BABASAB, AGED 50 YEARS, 2 . NASIRA KHANUM D/O LATE KAREEM KHAN @BABASAB, AGED 48 YEARS, 3 . SAYEERA KHANUM D/O LATE KAREEM KHAN @BABASAB, AGED 46 YEARS, 4. SAMEERA BHANU, D/O LATE KAREEM KHAN @BABASAB, AGED 48 YEARS, (BY SRI. T.GOVINDARAJA, ADVOCATE) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED CIVIL JUDGE SENIOR DIVISION COURT AT KUNIGAL DATED 28.04.2017 THEREBY ALLOWING THE I.A.NO.21 AND I.A.NO.24 FILED BY THE DEFENDANTS/RESPONDENTS AND CONSEQUENTLY DISMISS THE APPLICATIONS FILED UDNER ORDER VI RULE 17 OF C.P.C., BY THE DEFENDANTS/RESPONDENTS IN O.S.NO.116/200 AND O.S.NO.117/2007; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.116/2007 is invoking the writ jurisdiction of this Court for assailing the order dated 28.04.2017, a copy whereof is at Annexure-A, whereby, the learned Senior Civil Judge, Kunigal, has favoured respondent-defendants’ applications in I.A.No.21 filed under Order VI Rule 17 seeking leave to amend the Written statement and I.A.No.24 filed under Order VIII Rule 6(A) of CPC, 1908 seeking leave to file the Counter Claim. After service of notice, respondents having entered appearance through their counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this court is of a considered opinion that the impugned order cannot be sustained for the following reasons:
a) the suit for declaration in O.S.No.116/2007 was resisted by respondent-defendants by filing the Written Statement on 09.11.2007; the issues having framed, the trial has commenced; nearly six years after filing of the Written Statement and about 10 years after the service of summons in the suit the respondents has moved the subject applications and thus the same are militantly belated; allowing them at this stage of suit would cause a manifest injustice to the petitioner-plaintiff which cannot be compensated by imposition of cost; diligence is also apparently lacking; and, b) the Division Bench of this Court in the case of SHANTESH GUREDDI VS. SMT.THAYAMMA, ILR 1999 KAR 898, has held that a counter claim cannot be filed under Order VIII Rule 6(A) once the Written Statement is filed or the limitation period prescribed by law for filing the Written Statement has expired; this aspect having not been adverted to by the Court below an error of law apparent on the face of the record has crept in, and therefore the impugned order is legally vulnerable, for challenge.
In the above circumstances, these Writ Petitions succeed; impugned order is set at naught; if amendments to the Written Statement have already been carried out, the same shall be undone and the respondent is entitled to refund of the Court fee paid on the Counter Claim; liberty is reserved to the respondent-defendant to institute a fresh suit in accordance with law.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE DS