LexGAYATHRI WOMEN WELFARE ASSOCIATION versus GOWRAMMA AND ANR.
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[2011) 2 S.C.R. 47 GAYATHRI WOMEN WELFARE ASSOCIATION v. GOWRAMMA AND ANR. (Civil Appeal No. 6344 of 2009) JANUARY 11, 2011 [B. SUDERSHAN REDDY AND SURINDER SINGH NIJJAR, JJ.] A 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 F 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 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
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