Karnataka HC Upholds Rejection Of Brothers’ Counterclaim Bid In Partition Suit, Filed After Trial Began Without Showing Due Diligence

Respondent No. 1 filed a suit for partition and separate possession. The petitioners, who were among the defendants, filed written statements.

After issues had been framed and the plaintiff’s evidence recorded, the petitioners applied under Order VI Rule 17 CPC to amend their written statement and raise a counterclaim, asserting that a partition had been effected by their father during his lifetime.

The trial court rejected the application. The petitioners challenged that order under Article 227 of the Constitution.

Order VI Rule 17 CPC permits amendment of pleadings but, after commencement of trial, an amendment may be allowed only if the court concludes that, despite due diligence, the matter could not have been raised before trial commenced.

Pandit Malhari Mahale v. Monika Pandit Mahale, (2020) 2 SCC 549, requires the court to record a finding on due diligence.

Order VIII Rule 6A CPC governs counterclaims; the court relied on Ashok Kumar Kalra and subsequent decisions cited in Basavanneappa Malleshappa Nandgad v. Sunanda Mahabaleshwar Nandgad for the principle that a counterclaim introduced after the defendant has delivered the defence and the suit has substantially progressed may be refused, having regard to delay, prejudice, and the need for speedy disposal.

The proposed amendment was sought after issues had been framed and evidence had been recorded, when the case was at the stage of cross-examination of the defendants’ witnesses.

The application did not state or establish that, despite due diligence, the petitioners could not have raised the proposed plea earlier. The court therefore found that the statutory condition in the proviso to Order VI Rule 17 was not met.

The proposed counterclaim was also sought after the petitioners had delivered their defence and the trial had commenced, making its introduction at that advanced stage impermissible in the circumstances.

It dismissed the writ petition and declined the requested relief.