GAYATHRI WOMEN WELFARE ASSOCIATIONversusGOWRAMMA AND ANR.

                     [2011) 2 S.C.R. 47


       GAYATHRI WOMEN WELFARE ASSOCIATION                        A
                              v.
                  GOWRAMMA AND ANR.
              (Civil Appeal No. 6344 of 2009)
                     JANUARY 11, 2011
   [B. SUDERSHAN REDDY AND SURINDER SINGH
                  NIJJAR, JJ.]

     Code of Civil Procedure, 1908 - Order VI, Rule 17 -
Application for amendment of pleading at the stage of:appeal C
from the original decree - Maintainability of - Suit filed by
appellant for permanent injunction decreed - Defendant-
respondent sought to introduce counter claim for recovery of
possession at the stage of appeal - Prayer allowed by High
Court - Held: The High Court was not justified in permitting o
the respondents to raise the counter claim at a stage after the
issues had been framed by the trial court - Permitting a
counter claim at this stage would reopen the decree granted
by the trial court - The respondents failed to establish any
factual.or legal basis for modification/nullifying tfle decree of E
the trial court - Pleadings - Amendment of pleadings.

      The appellant filed suit for permanent injunction
contending that it had purchased the land in question
.under an agreement of sale and was in possession
thereof, in part performance of such agreement, however, · F
the respondents were trying to interfere with such lawful
possession of the appellant. The trial court decreed the
suit. The High Court, however, set aside the decree of the
trial court and remanded the matter to the trial court for
disposal afresh.                                           G
     After remanQ, the respondents amended their written
statement and incorporated a counter claim to direct the
appellants to demolish the structures put up on the said
                              47                                 H
    48      SUPREME COURT REPORTS             (2011] 2 S.C.R.

A land, whereafter the trial court framed two additional
  issues, and ultimately again decreed the suit of the
  appellants. At the same time, the trial court dismissed the
  counter claim filed by the respondents and further held
  that the appropriate remedy available to them was to file
B an independent suit for possession.                  '

       Aggrieved by the dismissal of the counter claim, the
   respondents again came before the High Court in appeal.
   During pendency of the appeal, the respondents filed an
   application seeking amendment of the written statement
C to include an additional prayer in the counter claim for
  ·recovery of possession. The High Court al.lowed
   amendment of the counter claim holding that since the
   dispute was pending between the parties from the year
   1981 and the suit was pending since 1999, no injustice
D would be caused to the appellant if the prayer for
   possession was also permitted to be incorporated In the
   counter claim, which would also avoid multiplicity of
   proceedings.

E        The question which arose for consideration in the
    present appeal was whether the High Court erred in
    permitting the respondents to raise the counter claim at
    a stage after the issues had been framed by the trial court.

         Allowing the appeal, the Court
F
       HELD:1.1. The High Court, while allowing the claim
  of the respondent to include the prayer for possession
  in the counter claim, failed to appreciate that the order
  passed by the trial court did not cause any prejudice to
G the respondents. The trial court had merely held that the
  remedy of an independent suit was available to the
  respondents. The trial court had clearly held that the
' cause of action for the relief of possession arose to the
  respondents many years ago and they, therefore, had
H
    GAYATHRI WOMEN WELFARE ASSOCIATION v.                  49
                 GOWRAMMA
cause of action, if any, for an independent suit. [Paras         A
25, 31] [62-8; 64-H; 65-A]

       1.2. One circumstance required to be taken into
  consideration, before an amendment is granted, is the
  delay in making the application seeking such amendment         8
  and, if made at the appellate sage, the reason why it was
  not sought in the trial court. In the present case, not only
  there was wholly untenable delay in the application but
  the appellants had a decree for permanent injunction in
  their. favour. [Para 28] [63-8-C]
I                                                                c
     1.3. Generally speaking, a counter claim not
contained in .the original written statement may be
refused to be taken on record, especially if issues have
already been framed. In the present case, the counter
claim was sought to be introduced at the stage of appeal         D.
before the High Court. In such circumstances, one is
unable to accept the conclusions of the High Court that
the discretion exercised by the trial court was in any
manner, illegal or arbitrary in rejecting the counter claim
of the respondents. [Paras 33, 34] [67-A·C]                      E

     1.4. Permitting a counter claim at this stage would
reopen the decree granted in favour of the appellants by
the trial court. The respondents have failed to establish
;my factual or legal basis for modification/nullifying the
decree of the trial court. [Para JG] [68-C-D]
                                                                 F

     /shwardas v. The State of Madya Pradesh & Ors. 1979
(4) SC.C 163; Rohit Singh & Ors. v. State of Bihar & Ors.
2006(12) SCC 734; Revajeetu Builders & Developers v.
Narayana Swamy & Sons 2009 (10) SCC 84; Ganga Bai v,             G
Vijay Kumar.197 4 2 sec 393 - relied on.

    Sampath Kumar v. Ayyakannu and Another JT 2002 (7)
SC 182; Jag Mohan Chawla & Anr. v. Dera Radha Swami
Satsang and Ors. 1996 (4) SCC 699; K. Moosa Hajji's Widow        H
    50       SUPREME COURT REPORTS             [2011] 2 S.C.R.


A Smt. Kannadiy.'I Ayissu & Ors. v. Executive Officer Sree
   Lakshmi Narsimha Temple AIR 1996 SC 2224; Nanduri
    Yogananda Lakshminarasimhachari & Ors v. Sri
   Agastheswaraswamivaru AIR 1960 SC 622; Surinder Singh
    v. Kapoor Singh (dead) through Lrs. & Ors. 2005 (5) SCC 142
B ; Sant Lal Jain v. Avtar Singh AIR 1985 SC 857; Ramesh
    Chand Ardawatiya v. Anil Panjwani 2003 (7) SCC 350;
    Dhanpal Balu Lhawale v. Adagouda Nemagouda Patil 2009
  . (7) SCC 457; Nanduri Yogananda Lakshminarasimhachari
    v. Sri Agastheswaraswamivaru AIR 1960 SC 622 ; Sangaram
c   Singh v. Election Tribunal, Kotah AIR 1955 SC 425; Arjun
    singh v. Mahindra Kumar AIR 1964 SC 993; Nanabhai
    Chuni/al Kabrawala AIR 1964 SC 11 - referred to.

                         Case Law Reference:

D        1979 (4)   sec 163     relied on            Para 12
         JT 2002 (7) SC 182     referred to          Para 13
         1996 (4)   sec 699     r"'ferred to         Para 13
         AIR 1996 SC 2224       r"'ferred to         Para 13
E
         AIR 1960 SC 622        referred to          Para 13
         2005 (5) sec 142       referred to          Para 13
         2006(12) sec 734       relied on            Para 13
F
         AIR 1985 SC 857        referred to          Para 16
         2003 (7) sec 350       referred to          Para 18
         2009 (10) sec 84       relied on            Para 19
G        2009 (7) sec 457       referred to          Para 19
         AIR 1960 SC 622        referred to          Para 27
         1914 2 sec 393         relied on            Para 31

H
    GAYATHRI WOMEN WELFARE ASSOCIATION v.                    51
                 GOWRAMMA
     AIR 1955 SC 425           referred ta           Para 33       A
     A!R 1964 SC 993           referred to           Para 33
     AIR 1964 SC 11            referred to           Para 33
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                B
6344 of 2009.

·     From the Judgment & Order dated 23.07.2008 of the High
I Court of Karnataka in RF.A. No. 1732 of 2005.

     p. Vishwanatha Setty, Kempe Gowda, Sharan Dev Singh           c
Thakur, Mahesh Kumar, Vijay Kumar, Dr. Sushil Balwada for
the Appellant.
    K.N. Balgopal, B.M. Arun, Balaji Srinivasan, Madhusmita
Bora, S. Srinivasan for the Respondents.
                                                                   D
     The Judgment of the Court was delivered by
     SURINDER SINGH NIJJAR, J. 1. This appeal is directed
against the final judgment and decree/order dated 23rd of July,
2008 passed by the learned Single Judge of the High Court          E
of Karnataka in RFA No.1732 of 2005 filed by the respondents
whereby the Hi1:1i1 Court in part modified and in part set aside
the judgment and decree dated 4th August, 2005 passed by
the Vth Additional City Civil Judge, Bangalore in OS No.163
of 1999.
                                                                   F
     2. The short issue which arises before us is whether the
High Court was justified in permitting the respondents to raise
the counter claim at a stage after the issues had beeQ framed
by the trial court.                                   ·
                                                                   G
      3. In order to decide the aforesaid issue, it is not
necessary to make a detailed reference to the chequered'
history of the litigation between the parties. We may, however,
briefly narrate the facts.                             ·
                                                                   H
     52          SUPREME COURT REPORTS              [2011] 2 S.C.R.


A        4. The appellants herein were the plaintiffs before the trial
     court and the respondents were the defendants.

       5. The appellant is an Association registered under the
  Societies Registration.. Act. The appellant contends that it
  purchased 2 acres 30 guntas of land in Sy.No.110/2 of Laggere
8
  Village (the schedule property) under an agreement of sale
  dated 26th November, 1988 from its vendors Sri B.C.
  Vijayakumar and Smt. Mayamma. In part performance of this
  agreement of sale, the appellant was put in possession of the
  schedule property. The appellant and is members are in
C peaceful possession and enjoyment of the same. In the month
  of December, 1998, the respondents tried to interfere with the
  appeliant's possession and enjoyment of the schedule property
  and therefore, they filed O.S.No.163of1999 for grant of decree
  of permanent injunction.
D
       6. The respondents 1 and 2 entered appearance before
  the trial court, filed written statement inter alia contended that
  they are the owners of a portion of land in Sy.No110/1 of
  Laggere village and the appellants are trespassing into their
E property. The respondents, therefore, opposed the claim of the
  appellants. On the basis of the pleadings, the trial court framed
  the following three issues for its consideration:

           "1.    Vvhether the appellant proves that it has been in
                  lawful possession of the suit schedule property ?
F.
           2.     Whether the appellant proves interference?

           3.     To what order and reliefs the parties are entitled ?"
         7. Before the trial court, the appellant examined six
G witnesses as PWs1 to 6 and got mar~ed Exs.P1 to P58. The
     respondents examined one witness as DW-1 and got marked
     Ex.01 to 044. The trial court after hearing both the parties and
    .on appreciation of the pleadings oral and documentary
  · evidence on record held that the appellants are in peaceful
H
    GAYATHRI WOMEN WELFARE ASSOCIATION v.                       53
     GOWRAMMA [SURINDER SINGH NIJJAR, J.]

 possession and enjoyment of the schedule property; there is          A
 interference by the respondents and consequently, decreed the
 suit of the appellants for permanent injunction vide judgment
 dated 4th August, 2005.

       8. Aggrieved by this judgment and decree of the trial court,   8
  the respondents approached the High Court of Karnataka in
  RFA No.497 of 2002. The High Court by its judgment dated 18th
· June, 2002 allowed the appeal, set aside the judgment and
  decree of the trial court and remanded the matter to the trial
  court for fresh disposal in accordance with law. The High Court     C
  while remanding the matter observed as under :

      "Therefore, keeping in view the submissions made, I deem
      it desirable that fresh survey is to be carried out in this suit
      by the Assistant Director of Land Records (hereinafter
      referred to as 'ADLR') by giving notice to both the parties D
      and in their presence the s·urvey is to be made. The
      appellants are however entitled to produce the records of
      the survey done earlier as an additional document before
      the trial Court and after survey; considering the reports C>f
      the Surveyor and the additional documents, if any, and if E
      necessary by allowing oral evidence, the trial court shall
      dispose of the suit in accordance with law."

      9. After remand from the High Court, the respondents
 amended their written statement and incorporated counter claim
                                                                      F
 to direct the appellants to demolish the structures put up
 subsequent to passing of the status quo order by the trial Court
 on the schedule property mentioned in the written statement.
 To this counter claim of respondents, the appellants filed written
 statement. On the basis of the amended pleadings, the trial
                                                                          1
 court framed. the following two additional issues:                   G

       "1. . Whether the respondents prove that the appellant
             Association have erected temporary sheds on the
             schedule property subsequent fo passing of Interim
             order in the above said suit.                            H
    54        SUPREME COURT REPORTS              [2011) 2 S.C.R.


A        2.    Whether the respondents are entitled to the relief
               of Mandatory Injunction by way of counter claim."

       10. After remand and framing of additional issues, both the
  parties adduced oral evidence and produced additional
  documents. Pursuant to the directions issued by the High Court
8
  in RFA No.497 of 2002, the trial court appointed Assistant
  Director of Land Records (hereinafter referred to as 'ADLR')
  as Court Commissioner to survey the schedule property in the
  presence of both the parties. Accordingly, the Court
  Commissioner conducted survey of the schedule property and
C submitted his report to the trial court. The Court Commissioner
  was examined as CW-1 and through him three documents
  came to be marked as Ex.C1 to Ex.C3.

       11. Again the trial court after hearing both the parties and
D upon appreciation of the pleadings, oral as well as documentary
  evidence, on record decreed the suit of the appellants by
  judgment and decree dated 4th August, 2005. At the same
  time, the trial court dismissed the counter claim filed by the
  respondents.
E
       12. Aggrieved by the dismissal of the counter claim, the
  respondents again came before the High Court in Regular First
  Appeal No.1732 of 2005. It was conceded before the High
  Court that the respondents do not have any grievance in so far
  as the trial court decreed the suit of the appellants. The only
F marginal issue raised by the respondents was that the judgment
  and the decree of the trial court had to be classified with
  reference to the survey conducted by the ADLR after the matter
  was remanded by the High Court. The other grievance made
  by the respondents was that the trial court had committed a
G serious error in not decreeing the counter claim. This, according
  to the respondents, has resulted failure of justice. In support of
  this submission, the respondents had relied upon the following
  judgments :-

H
      GAYATHRI WOMEN WELFARE ASSOCIATION v.                  55
       GOWRAMMA [SURINDER SINGH NIJJAR, J.]
        a.     lshwardas Vs. Th(f] State of Madhya Pradesh & A
               Ors. 1
        b.     Sampath Kumar Vs. Ayyakannu and Another2 •
        c.     Jag Mohan Chawla & Anr. Vs. Dera Radha Swami
               Satsand & Ors. 3                     ·             B
        d.     K. Moosa Hajji's Widow Smt. Kannadiyil Ayissu &
               Ors. Vs. Executive Officer Sree Lakshmi
               Narasimha Temple 4·
        e.     Nanduri Yogananda Lakshminarasimhachari & C
               Ors. Vs. Sri Agastheswaraswamivaru5•
        f.     Surinder Singh Vs. Kapoor Singh (dead) through
               Lrs. & Ors. 6
        13. On the other hand, the appellants supported the D
  judgment of the trial court on the ground that they had° been put
  in possession of the land on the basis of the survey conducted
  in the year 1981, under the agreement of sale dated 26th
  November, 1988. The survey in 2003 after remand, by virtue
  of order of the High Court dated 18th June, 2002 in RFA E
  No.497 of 2002, however, indicated that the appellants were
· in possession of a portion in Survey No.110/1 and another
  portion in Survey No.110/2. It was the case of the appellants
  ·(hat unless they are legally. dispossessed by due process of law,
  they were entitled to continue in the portion occupied by them F
  in Survey No.110/1. In support of their submission the
  appellants relied on a judgment of this Court in Rohit Singh &
  Ors. Vs. State of Bihar & Ors. 7•
 1.   1979 (4) sec 163.
 2.   JT :tuJ2 (7) SC 182.                                        G
 3. 1996 (4) ~r,c 699.
 4.   AIR 1996 SC ~:.!24.
 5.   AIR 1960 SC 622.
 3.   2005 (5) sec 142.
 ~
 I.   2006 (12) sec 734.                                          H
    56        SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A        14. Upon consideration of the entire Issues, the High Court
    concluded that the plaint schedule property of the appellants to
    the extent of 2 acres and 30 guntas was in survey No.110/2 of
    Laggere Village. The High Court also held that the survey dated
    24th March, 1981 on the basis of which the appellants had been
B   put in. possession on a portion of survey No.110/1 and portion
    of survey No.110/2 had been set aside by the Joint Director of
    Land Records (hereinafter referred to as 'JDLR) on 22nd June,
    1998 in Appeal No.4/98. The High Court noted that this order
    of JDLR was prior to the filing of the suit before the trial court
c   on 6th January, 1999. The fact that the appellants were in
    possession of portions of Sy.No.110/1 and Sy.No.110/2 ought
    to have been pleaded in the original plaint. It is further observed
    that, in any event, the appellants ought to have amended the
    plaint contending that they are in possession of a portion of
    Sy.No.110/1 and a portion in Sy.No.110/2. Instead of maKing
0
    the necessary averments in the original plaint or amending the
    pleadings, the prayer of the appellants remained that they are
    in possession of 2 acres and 30 guntas in Survey No.110/2.
    The High Court further noted that the location of 2 acres and
    30 guntas in Survey No.110/2 was clearly specified in the
E   survey sketch prepared by the ADLR in the year 2003. This is
    also depicted in Ex.C3. The High Court noted that the learned
    counsel for the respondents had no objection for grant of
    decree for permanent injunction in favour of the appellants,
    classified by the survey of 2003. Relying on the submission of
F    learned counsel for the respondents, the High Court has
    confirmed the decree of permanent injunction in favour of the
     appellant, with the modification in reference to the survey sketch
     Ex.C3.
G     15. With reference to the counter claim, the High Court
  observed that upon remand of the matter by the High Court in
  P.FA No.497 of 2002, the trial court permitted the respondents
  to amend the written statement to incorporate the relief of
  counter claim for mandatory injunction. After the respondents
H had filed the amended written statement, the appellants filed
      GAYATHRI WOMEN WELFARE ASSOCIATION v. .                57
       GOWRAMMA [SURINDER SINGH NIJJAR, J.]
  the written statement to the counter claim. On the basis of the A
. amended pleadings, the trial court had framed additional
  issues. Upon .the pleadings of the parties and upon
  consideration of the material on record, as noticed earlier, the
  trial court again decreed the suit of the appellants but
  dismissed the counter claim.                                     B
       16. During the pendency of the appeal before the High
 Court, the respondents filed an application seeking amendment
 of the written statement to include the additional prayer in the
 counter claim for recovery of possession of the suit schedule
 property falling within Survey No.110/1. The High Court noticed C
 that in the normal course an application for amendment of the
 written statement at the stage of appeal from the original decree
 was not entertainable. However, since the dispute was pending
 between the parties from the year 1981 and the suit was
 pending s.ince 1999, no injustice would be cause.d to the D
 appellant if the prayer for possession was also permitted to be
 incorporated in the counter c:aim. Justification given for taking
 such a view was to avoid multiplicity of proceedings. To buttress
 its conclusion, the High Court relied on a judgment of this Court
 in the case of Sant Lal Jain Vs. Avtar Singh 8• Allowing the E
 appeal filed by the respondents, the High Court passed the
 following order :-
        "1.   The appeal is partly allowed.
        2.    The impugned judgment and decree of the trial · F
              court decreeing the suit of appellant for permanent
              injunction is modified specifying that the plaint
              schedule property as ABFH shown in green colour
              in survey sketch.
                                                                   G
        3.    •he respondents or anybody claiming under them
              are hereby permanently restrained from interfering
              from the peaceful possession and enjoyment of the

 8.   AIR 1985 SC 857.                                             H
    58          SUPREME COURT REPORTS                [2011] 2 S.C.R.


A                plaint schedule property as stated above.

          4.     The impugned judgment and decree of the trial
                 court dismissing the counter claim of the
                 respondents is hereby set aside.
B         5.     The application filled by the respondents for
                 amendment of the counter claim is hereby allowed.

          6.     The learned counsel for the respondents to amend
                 the counter claim of the written statement before the
c                trial court within two weeks from the date of receipt
                 of the order. The trial court to provide an opportunity
                 to the appellants to file additional written statement
                 for this counter claim and to decide the matter in
                 accordance to both the parties.
D          7.    In view of the fact that already abundant evidence
                 available on record and the matter is pending for a
                 long time, a direction is issued to the trial court to
                 expedite the matter and to dispose the counter
                 claim of the of the respondents as expeditiously as
E                possible and in any event not later than four months
                 from the date of receipt of copy of this order."

    It is the aforesaid order which is challenged by the appellants
    herein.
F
          17. We have heard the learned counsel for the parties.

      18. Mr. Vishwanatha Shetty, learned counsel for the
  appellants submitted that the judgment of the High Court runs
  counter to the law laid down by this Court in the case of
G Ramesh Chand Ardawatiya Vs. Ani/ Panjwani9 and the
  judgment of this Court in Rohit Singh's case (supra). Learned
  counsel further submitted that the mere fact the respondents
  now wish to incorporate the prayer of possession of the suit

H   9.   2003 (7) sec 350.
   GAYATHRI WOMEN WELFARE ASSOCIATION v.                      59
    GOWRAMMA [SURINDER SINGH NIJJAR, J.]
schedule property falling within Survey No.110/1, is sufficient      A.
proof of possession of the property by the appellants. Therefore,
the trial court had not committed any error in granting the decree
of permanent injunction for the entire suit schedule property.
The appellant and its members have. bu'ilt a number of
residential building and their members are residing in those         B
houses. Now if the respondents wish to take possession of the
af!?resaid property .they would have to seek the necessary relief
in appropriate proceedings, i.e., by filing a separate suit for
possession. According to the learned counsel, the High Court
had committed an error of jurisdiction in permitting an              c
amendment of the counter claim when the dispute had already
been pending between the parties for more than 27 years. It is
further the submission of he learned counsel that by now
incorporating the prayer for possession, the respondents have
successfully obliterated the decree passed in their favour by the
                                                                     0
trial court. He submits that by adopting such 1{circuitous route,
the respondents are trying to avoid the legal objection including
that the suit for possession is barred by limitation which would
be open to the appellants, if such suit was to be filed now by
the respondents with regard to the portion of the suit 8lchedule
property falling within Survey No.110/1.                             E

     19. On the other hand, Mr. Balgopal, learned senior
counsel appearing for the respondents also relied on certain
judgments of this Court, in support of his submission that an
amendment can be allowed by the court, at any stage of the F
proceedings notwithstanding the law of limitation. He has
pointed out that the law is well settled that the amendments in
the pleadings are to be liberally permitted by the court. The only
rider is the court being satisfied that such amendment is
necessary for the determination of the real question iii G
controversy. In support of his submissions, the learned counsel
has made particular reference to the judgment of this Court in
Revajeetu Builders & Developers Vs. Narayana Swamy &
Sons 10 and Dhanpal Balu Lhawale . Vs. Adagouda
10. 2009 c10) sec 84.                                                H
    60       SUPREME COURT REPORTS                (2011) 2 S.C.R.

A Nemagouda Pati/ 11 •
       20. Learned counsel by making a detailed reference to the
  factual situation has submitted that the boundaries of the land
  were fixed In the presence of the parties on 3rd March, 2000
  by the ADLR. The order of the ADLR was upheld by the
9
  Revenue Authorities. The' Karnataka Appellate Tribunal
  dismissed Appeal No.398 of 2001 filed by the appellants on
  13th December, 2001. The order of the Tribunal was challenged
  by the appellants in the High Court of Karnataka in Writ Petition
C Nos.2661-64 of 2002. The High Court dismissed the aforesaid
  writ petition by order dated 4th March, 2002. In view of the
  above, the matter regarding hudbust and fixing of boundaries
  and rights of interest over the respective portions of the land
  between the vendors of the appellants on the one hand and the
  respondents had attained finality.
D
       21. This apart, after the remand of the matter by the High
  Court in RFA No.497 of 2002, the ADLR again conducted the
  survey on 25th July, 2003. At that time, the survey showed only
  27 constructions in the disputed area i.e. survey No.110/1. Only
E 16 constructions were in the land belonging to the appellants
  in survey No.110/2. The survey report of the ADLR clearly
  demonstrated that the appE:.llants had encroached on the land
  belonging to the respondents. This had necessitated the
  amendment to the counter claim for incorporation of the plea
F for possession of the same. It was next submitted by the
  learned counsel that the High Court was fully justified in allowing
  the application under Order VI Rule 17 seeking amendment of
  the counter claim, the aforesaid application was filed along with
  RFA No.1732 of 2005. According to the learned counsel, the
G order passed by the High Court under appeal was fully justified
  in the interest of justice.
         22. Learned counsel then submitted that the judgment of
    this Court in Rohit Singh's case (supra) is not applicable to the

H   11. 2009 (7) sec 457.
  . GAYATHRI WOMEN WELFARE ASSOCIATION v.                    61
     GOWRAMMA [SURINDER SINGH NIJJAR, J.]
facts of this case. It is still further submitted by the learned A
counsel that the counter claim of the respondent is independent
of the claim made by the appellants. It stands on a different
footing. The counter claim is required to be treated as an
independent suit in view of the provisions of Order VIII Rule 6A
of the .Code cf Civil Procedure. Finally, it is submitted by the B
learned counsel that the appellants are not a bonafide litigants.
Till date, the sale deed has not been executed in their favour
by the vendors. They are raising all frivolous objections only on
the basis of an alleged agreement for sale. According to the
learned counsel, the appellants have been put up by the legal c
heirs of the original owners from whom the respondents had
purchased the land.

     23. We have considered the submissions made by the
learned counsel for the parties. The trial court upon a detailed
appreciation of the evidence led by the parties concluded that D
on the basis of the material on record, it can be said that the
possession of the appellant in respect of the plaint schedule
property as against the respondents was long, settled and
uninterrupted. On the basis of the aforesaid conclusion, the trial
court proceeded to decide the issue with regard to the counter E
claim of the respondents.

      24. It was noticed that the respondents wanted a direction
in the nature of the Mandatory Injunction, to be given to the
appellant to demolish the illegal construction, which came F
subsequent to the passing of the status quo order. We may
notice here that the status quo order referred to by the trial court
had been passed on 7th January, 1999. The trial court, however,
observed that "the order of status quo was granted in respect
to disputed property. The disputed property is what is described G
in the plaint schedule and not in the schedule to the written
statement." Therefore, it was observed that the respondents
would have the cause of action available to seek possession
based on title and not on the basis of mandatory injunction on
account of violation of status quo order. In these circumstances, H
    62        SUPREME COURT REPORTS                 [2011] 2 S.C.R.


A the trial court observed that the appropriate remedy available
  to the respondents is to sue for possession.

         25. In our opinion, the High Court, while allowing the claims
    of the respondent to include the prayer for possession in the
    counter claim, failed to appreciate that the order passed by the
8
    trial court did not cause any prejudice to the respondents. The
    trial court had merely held that the remedy of an independent
    suit was available to the respondents.

        26. In our opinion, the judgments relied upon by the
C .respondents are really of no assistance in the facts and
   circumstances of this case.

          27. In Nanduri Yogananda Lakshminarasimhachari Vs.
    Sri Agastheswaraswamivaru 12, this Court observed that the
0   amendment could be permitted in a plaint as there was no new
    fact to be alleged and the parties were alive to the real nature
    of the dispute.
        28. In the case of Pandit lshwardas (supra}, it has been
    observed as follows :-
E
          "There is no impediment or bar against an appellate Court
          permitting amendment of pleadings so as to enable a party
          to raise a new plea. All that is necessary is that the
          appellate Court should observe the well known principles
F         subject to which amendments of pleadings are usually
          granted. Naturally one of the circumstances which will be
          taken into consideration before an amendment is granted
           is the delay in making the application seeking such
           amendment and, if made at the appellate stage, the
G          reason why it was not sought in the trial court. If the
         · necessary material on which the plea arising from the
           amendment may be decided is already there, the
           amendment may be more readily granted than otherwise.
           But, there is no prohibition against an appellate Court
H 12. AIR 1960 SC 622.'
   GAYATHRI WOMEN WELFARE ASSOCIATION v.                     63 .
    GOWRAMMA [SURINDER SINGH NIJJAR, J.]
     permitting an amendment at the appellate stage merely A
    because the necessary material is not already before the
    .Court."
These observations clearly indicate that one of· the
circumstances which will be taken into consideration.before an B
amendment is granted is the delay in making the application
seeking such amendment and, if made at the appellate sage,
the reason why it was not sought in the trial court. In the present
case, not only there is wholly untenable delay in the application
but the appellants had a decree for permanent injunction in their C
favour.
    29. In the case of Jagmohan Chawla (supra), this Court
considered the scope of Rule 6A to 6G of Order VIII CPC and
observed as follows:-
                                                                    D
    "lt is true that in money suits, decree must be conformable
    to Order 20, Rule 18, CPC but the object of the
    amendments introduced by Rules _6-A to 6-G are
    conferment of a statutory right on. the defendant to set up
    a counter-claim independent of the claim on the basis of · E
    which the appellant laid the suit, on his own cause of action.
    In sub-rule (1) of Rule 6-A, the language is so couched with
    words of wide width as to enable the parties to bring his
    own independent cause of action in respect of any claim
    that would be the subject-matter of an independent suit.
    Thereby, it is no longer confined to money claim or to cause F
    of action of the same nature as original action of the
    plaintiff. It need not relate to or be connected with the
    original cause of action or matter pleaded by the plaintiff.
    The words "any right or claim in respect of a cause of action
    accruing with the defendant" would show that the cause of G
    action .from which the counter-claim arises· need not
    necessarily arise from or have any nexus with the cause
    of action of the plaintiff that occasioned to lay the suit. The
    only limitation is that the cause of action should arise before
                                                                    H
    64       SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A        the time fixed for filing the written statement expires."
    The aforesaid observations, in our opinion, have no relevance
    to the controversy in the present case, as the claim of the
    respondent has been rejected by the trial court on the ground
    that the cause of action arose a long time ago.
8
          30. In the case of Revajeetu Builders (supra), this Court
    reiterated the very wide discretion the Courts have in the matter
    of amendment of pleadings. These observations were in the
    context of an application filed by the appellant, seeking
C   amendment of the original plaint including the prayer clause
    being rejected by the Higl) Court upon coming to a definite
    conclusion that the appellant while seeking permission to
    amend the plaint is trying to introduce a new case, which was
    not his case in the original plaint and the proposed amendment,
D   if allowed, would certainly affect the rights of the respondents
    adversely. It was also held that any such amendment, which
    changes the entire character of the plaint, can not be permitted
    and that toq, after a lapse of four years and after the institution
    of the suit. This Court, upon a detailed consideration of the
E   historical background of Order VI Rule 17 and upon a
    comprehensive survey of the case law, concluded that the
    amendment can be permitted, if it was necessary for the
    determination of the real question in controversy. If that condition
    is not satisfied, the amendment can not be allowed. It was also
F   observed as follows:-
         "22 ..... The power to allow an amendment is undoubtedly
         wide and may at any stage be appropriately exercised in
         the interest of justice, the law of limitation notwithstanding.
         But the exercise of such far-reaching discretionary powers
G        is governed by judicial considerations and wider the
         discretion, greater ought to be the care and circumspection
         on the part of the court."
      31. In our opinion, the decision of the trial court is in
H conformity with the aforesaid principles. The trial court has
     . GAYATHRI WOMEN WELFARE ASSOCIATION v.                      65
        GOWRAMMA [SURINDER SINGH NIJJAR, J.]
clearly held that the cause of action for the relief of possession      A
arose to the respondents many years ago. They may, therefore,
have a cause of action, if any, for an independent suit. In the
aforesaid case, the Court further reiterated the principle in
Ganga Bai Vs. Vijay Kumar13 wherein it was rightly observed
..                                                                      8
      "The power to allow an amendment is undoubtedly wide
      and may at any stage be appropriately exercised in the
      interest of justice, the law of limitation notwithstanding. But
      the exercise of such far-reaching discretionary powers is         C
      governed by judicial considerations and wider the
      discretion, greater ought to be the care and circumspection
      on the part of the Court."
     32. Similarly in Dhanpal Batu (supra), this Court permitted
the amendment in the facts and circumstances of that case.              D
Thus the judgment would not advance the case of the appellant
in any manner.
     33. We may notice here the observations made by this
Court in the case of Ramesh Chand (supra) which may be of E
some relevance. Upon considering the ratio of earlier cases ·
in the case of Sangaram Singh Vs. Election Tribunal, Kotah 14,
Arjun Singh Vs. Mohindra Kumar15 and Laxmidas Dayabhai
Kabrawala Vs. Nanabhai Chunilal Kabrawala 16, it was held
that a right to make a counter claim is statutory and a counter
claim is not admissible in a case which is admittedly not within F
the statutory provisions. It is further observed that :
      "Looking to the scheme of Order 8 as amended by Act 104
      of 1976, we are of the opinion, that there are three modes
      of pleading or setting up a counter-claim in a civil suit.        G

13. 1974 2 sec 393.
14. AIR 1955 SC 425.
15. AIR 1964 SC 993.
16. AIR 1964 SC 11.                                                     H
    66        SUPREME COURT REPORTS                [2011] 2 S.C.R.

A        Firstly, the written statement filed under Rule 1 may itself
         contain a counter-claim which in the light of Rule 1 read
         with Rule 6-A would be a counter-claim against the claim
         of the appeilant preferred in exercise of legal right
         conferred by Rule 6-A. Secondly, a counter-claim may be
8        preferred by way of amendment incorporated subject to
         the leave of the court in a written statement already filed.
         Thirdly, a counter-claim may be filed by way of a
         subsequent pleading under Rule 9. In the latter two cases
         the counter-claim though referable to Rule 6-A cannot be
c        brought on record as of right but shall be governed by the
         discretion vesting in the court, either under Order 6 Rule
         17 CPC if sought to be introduced by way of amendment,
         or, subject to exercise of discretion conferred on the court
         under Order 8 Rule 9 CPC if sought to be placed on
         record by way of subsequent pleading. The purpose of the
D
         provision enabling filing of a counter-claim is to avoid
         multiplicity of judicial proceedings and save upon the
         court's time as also to exclude the inconvenience to the
         parties by enabling claims and counter-claims, that is, all
          disputes between the same parties being decided in the
E         course of the same proceedings. If the .consequence of
          permitting a counter-claim either by way of amendment or
          by way of subsequent pleading would be prolonging of the
          trial, complicating the otherwise smooth flow of
          proceedings or causing a delay in the progress of the suit
F         by forcing a retreat on the steps already taken by the court,
          the court would be justified in exercising its discretion not
          in favour of permitting a belated counter-claim. The framers
          of the law never intended the pleading by way of counter-
          claim being utilized as an instrument for forcing upon a
G         reopening of the trial or pushing back the progress of
          proceeding. Generally speaking, a counter-claim not
          contained in the original written statement may be refused
          to be taken on record if the issues have already been
          framed and the case set down for trial, and more so when
H         the trial has already commenced."
   GAYATHRI WOMEN WELFARE ASSOCIATION v.                          67
    GOWRAMMA [SURINDER SINGH N!JJAR, J.]
These observations make it clear that generally speaking the             A
counter claim not contained in the original written statement
may be refused to be taken on record, especially if issues have
already been framed. In the present case, the counter claim is
sought to be introduced at the stage of appeal before the High
Court.                                                                   B
     34. In such circumstances, we are unable to accept the
conclusions of the High Court that the discretion exercised by
the trial court was in any manner, illegal or arbitrary in rejecting
the counter claim of the respondents. We may notice here the
observations of this Court in the case of Rohit Singh (supra)            C
which are as follows :-
     "A counterclaim, no doubt, could be filed even after the
     written statement is filed, but that does not mean that a
     counterclaim can be raised after issues are framed and              D
     the evidence is closed. Therefore, the entertaining of the
     so-called counterclaim of Respondents 3 to 17 by the trial
     court, after the framing of issues for trial, was clearly illegal
     and without jurisdiction."
These observations would show that the dismissal of the counter E
claim by the trial ,..ourt was neither illegal nor without jurisdiction.
In fact the direction issued by the High Court would clearly run
counter to the aforesaid observations. In the aforesaid case,
this Court was considering a situation where the evidence had
been closed, arguments on behalf of the respondents had been F
concluded, the suit was adjourned for arguments of the
appellants, the suit was dismissed for default. Subsequently, it
was restored. Thereafter the respondents filed an application
for amending the written statement. The counter claim was filed
by the intervener. In these circumstances, it was observed that G
at this. stage no counter claim could be entertained.
    35. In the present case, after the matter had been
remanded back, the trial court again decreed the suit of the
appellants, the counter claim was dismissed for the reasons              H
    68       SUPREME COURT REPORTS                [2011) 2 S.C.R.

A stated in the judgment of the trial court. We may restate here
  that the prayer in the original counter claim was only for a
  mandatory injunction to demolish the illegal structures in
  Sy.No.110/1. It was only when the Regular First Appeal was
  filed for challenging the original decree that the respondents
B made an application under Order VI Rule 17 for amendment
  of the original written statement to incorporate the counter claim
  with a prayer for possession of the land in dispute in Survey
  No.110/1. In such circumstances, the High Court erred in
  disturbing the findings recorded by the trial court.
c      36. The matter herein symbolizes the concern highlighted
  by this Court in the case of Ramesh Chand (supra). Permitting
  a counter claim at this stage would be to reopen a decree which
  has been granted in favour of the appellants by the trial court.
  The respondents have failed to establish any factual or legal
D basis for modification/nullifying the decree of the trial court.
        37. We are of the considered opinion that the High Court
  committed a serious error of jurisdiction in allowing the appeal
  filed by the respondents. Consequently, the appeal is allowed.
E The Judgment of the High Court is set aside.
    B.B.B.                                        Appeal allowed.