SYED SADRUL ISLAM ASAD HUSSAIN THR POWER OF ATTORNEY ZAMEER HUSSAIN SADRUL ISLAMversusSAYEED KHAN HAJI KAREEM KHAN

2026:BHC-AUG:40067
                                                1                WP.8425-25 (Final Order).odt



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                    WRIT PETITION NO. 8425 OF 2025

                          SYED SADRUL ISLAM ASAD HUSSAIN THR POWER OF
                             ATTORNEY ZAMEER HUSSAIN SADRUL ISLAM
                                             VERSUS
                                 SAYEED KHAN HAJI KAREEM KHAN

                                                      ...
                          Advocate for the Petitioner : Mr. Akshay Kulkarni h/f Mr.
                                              Yadkikar Amit A.
                          Advocate for Respondent : Mr. Navin Shah i/b Zambare
                                             Sudheer Ramdas.
                                                      ...

                                            CORAM : MANJUSHA A. DESHPANDE, J.
                                            DATE : 31.08.2026

                     FINAL ORDER :-


                     1.     The petitioner is the original defendant in the suit filed

                     by the respondent herein for recovery of possession of rented

                     shop bearing No.1-5-2, situated at CTS.No.5974, shop No.2,

                     situated at Mohalla Mqdoomnagar, Main road, Shivajinagar,

                     Nanded.


                     2.     It is the case of respondent herein that the present

                     petitioner was in possession of the shop which was granted to

                     him by way of leave and license agreement dated 14.10.2019,

                     which was valid from 01.10.2019 to 30.09.2021, on a monthly

                     rental basis. It is alleged that in spite of the expiry of the term

                     mentioned in the license agreement, the petitioner has failed to
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vacate the premises, therefore, he has filed RCS.No.552 of

2021, with a relief of recovery of possession and a prayer for

injunction restricting the petitioner from alienating and

creating third party interest in the suit property.


3.    It is the contention of the learned advocate for the

petitioner that, the petitioner had filed written statement at

Exh.23 on 08.06.2022 denying all the averments in the plaint

of the respondent. He has come with a specific case that in

fact he was tenant of the suit property since 1995, and he has

been remitting the rent to the father-in-law of the respondent

regularly, this fact has been suppressed by the respondent. He

has suppressed many other factual aspects in respect of the

said property. It is submitted that in the evidence affidavit filed

by the respondent in the suit he has admitted the fact of

receiving Rs.5,00,000/- towards advance deposit from the

petitioner. Therefore, considering the contingent situation, that

would arise if the suit is decreed in favour of the respondent,

herein, he would lose the possession as well as the advance

deposit of Rs.5,00,000/- paid to the respondent, thus the

petitioner has filed an application Exh.75 seeking amendment

in the written statement under Order VI Rule 17 of the Code of

Civil Procedure. In this view of the matter, the petitioner has
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moved an application seeking permission to make necessary

amendment in the written statement by adding a prayer that

“if the suit is going to decree in such event the plaintiff may

kindly be directed to refund the deposit amount of

Rs.5,00,000/- to the defendant for receiving the vacant

possession”. This application was resisted by respondent on the

ground that the application is nothing but delaying tactics by

the respondent.


4.    The application for amendment under Order VI Rule 17

filed by the petitioner has been rejected by the learned Joint

Civil Judge Junior Division, Nanded vide order dated

11.04.2025, by observing that the suit is filed by the plaintiff

for recovery of possession, though the defendant has contested

the suit by filing written statement, he did not file any counter

claim. The petitioner by way of the application was seeking

direction to the respondent herein to refund the advance of

Rs.5,00,000/- in the event of decree of suit. This according to

the learned Judge amounted to relief in the nature of

mandatory direction, which cannot be granted by way of

amendment in the written statement.        If any such relief is

claimed, it ought to be by way of a counter claim. The Court is

not empowered to allow such applications.               Since the
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petitioner did not file any such counter claim, the application

has been rejected.


5.    Learned advocate for the petitioner Mr. Kulkarni would

submit that although the application is titled as an amendment

in the written statement in fact it is a counter claim made by

the original defendant. If we see the prayers made in the

application, it is evident that such prayer is made seeking a

relief which can be claimed only in a counter claim made

under Order VIII Rule 6A. The very purpose of Order VIII Rule

6A is to offer opportunity to defendant to claim any right

against the plaintiff in respect of the cause of action accruing

to the defendant against the plaintiff, either before or after

filing of the suit but before the defendant has delivered his

defence or before the time limit for delivering his defence has

expired.   In view of the scope of Order VIII Rule 6A, the

application of the petitioner should have been allowed without

raising technical objections by the learned Judge.


6.    It is submitted that the petitioner will lose his valuable

right to recover the amount of Rs.5,00,000/- deposited by him,

while executing the leave and license agreement if such

application is rejected. His application needs to be allowed so

as to avoid the multiplicity of proceedings. He further submits
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that by allowing the application of the petitioner, no prejudice

is going to be caused to the respondent. He would further

submit that although the application is titled as application for

amendment of written statement. It is merely wrong mention

of the provision in the title of application, therefore,

considering the irreparable loss i.e. likely to be caused to the

present petitioner, the impugned order deserves to be quashed

and set aside, by allowing the petitioner to file appropriate

application by raising counter claim.


7.    The prayers made by the petitioner is strongly opposed

by the learned advocate Mr. Shah, who submitted that the

order impugned has been rightly passed by the learned Judge.

If at all the petitioner wants to claim any relief in the suit filed

by the respondent, the only remedy available to him is by way

of filing a counter claim. He has submitted that issues are

already framed on 06.11.2023, on the basis of the plaint and

the written statement filed by the defendant. Therefore, the

petitioner is now precluded from raising any counter claim. He

would rely on the decision in the case of Ashok Kumar Kalra

Vs. Wing Commander Surendra Agnihotri and others ; [2020

(2) SCC 394], wherein the Hon’ble Supreme Court considered

a reference made by the Divisional Bench in its order dated
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10.09.2018 concerning the time limit for filing a counter claim

when not expressly mentioned in the statute. While answering

the said reference, the Hon’ble Supreme Court has held that

even if there is no time limit provided by the statute, it does

not mean that the counter claim can be filed at any time, after

filing of the written statement. Considering that the counter

claim is treated as a plaint, generally it needs to be compliant

with limitation period provided under the Limitation Act. He

would rely on the specific observations of the Hon’ble Supreme

Court, wherein it is held that defendant cannot be permitted to

file counter claim after the issues are framed and after the suit

has proceeded substantially. It is held that allowing the same

would defeat the cause of justice and would be detrimental to

the principle of speedy justice as enshrined in the objects and

reasons for the particular amendment to the CPC.


8.    It is his contention that, since the issues in the present

case are already framed, it would cause great prejudice to the

interest of the respondent. It is therefore, submitted that the

writ petition does not deserve consideration and should be

dismissed.


9.    I have heard the respective parties and also perused the

documents on record with their assistance. The written
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statement has been filed by the petitioner at Exh.23 on

08.06.2022. The petitioner had knowledge that, he has

deposited an advance of Rs.5,00,000/-, however, he has not

made any averment in the written statement about it. Similarly,

he has not set out any counter claim to that effect as

contemplated under Rule 6A of Order VIII which reads thus ;

    “6A. Counter-claim by defendant.—(1) A defendant in a
    suit may, in addition to his right of pleading a set-off under
    rule 6, set up, by way of counter-claim against the claim of
    the plaintiff, any right or claim in respect of a cause of
    action accruing to the defendant against the plaintiff either
    before or after the filing of the suit but before the
    defendant has delivered his defence or before the time
    limited for delivering his defence has expired, whether
    such counter-claim is in the nature of a claim for damages
    or not:

        Provided that such counter-claim shall not exceed the
        pecuniary limits of the jurisdiction of the court.

    (2) Such counter-claim shall have the same effect as a
    cross-suit so as to enable the Court to pronounce a final
    judgment in the same suit, both on the original claim and
    on the counter-claim.

    (3) The plaintiff shall be at liberty to file a written
    statement in answer to the counter-claim of the defendant
    within such period as may be fixed by the court.

    (4) The counter-claim shall be treated as a plaint and
    governed by the rules applicable to plaints.”
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10.   The petitioner had filed an application for refund of

advance amount with a prayer to refund the amount of

Rs.5,00,000/- in an application dated 08.06.2022 which came

to be rejected by the order dated 20.01.2025 passed by the

Joint Civil Judge Junior Division, Nanded which has been

rejected holding that since there is no counter claim or set off

by the defendant, the application filed by the petitioner is not

maintainable.


11.   In spite of these observations in the order dated

20.01.2025, the petitioner has yet again file an application

under Order VI Rule 17 seeking permission for making

necessary amendment in the written statement for adding

prayers in the written statement about refund of the amount of

Rs.5,00,000/- in case the suit of the plaintiff is decreed.

Although it is settled position of law that, the Court should

employ a liberal approach in case of amendment of written

statement as compared to that of amendment in the plaint, the

amendment which is sought to be introduced by the petitioner

is permissible only in a case where a counter claim is filed by

the petitioner. There can be no relief granted to the defendant

in a suit filed by the plaintiff unless the defendant files a

counter claim with a prayer to that effect raising claim against
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the plaintiff arising out of the same cause of action.               It is

settled position of law that a defendant cannot be granted

relief in the suit filed by the plaintiff. If any such relief is to be

granted it has to be granted only in a counter claim raised by

the defendant.


12.     Although the petitioner has relied on the decision of the

Hon’ble Supreme Court in Vijay Prakash Jarath Vs. Tejprakash

Jarath ; [2016 (11) SCC 800] particularly, relying on the

observations made by the Supreme Court in paragraph No.9 of

the said judgment, wherein the counter claim filed by the

defendant is allowed by the Hon’ble Supreme Court although it

was filed two and a half years after the framing of issues

recording    that,   no   prejudice    will   be    caused      to    the

respondent/plaintiff if the counter claim was to be adjudicated

along with the main suit. Thus, the Hon’ble Supreme Court

has allowed the counter claim filed by the defendant in the

suit.


13.     The aforementioned decision is clearly based on the

factual position that counter claim was filed by the defendant

and it was not allowed on account of delay in filing the same.

The facts of the present case can be distinguished from the

aforementioned decision of the Hon’ble Supreme Court since
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the application of the petitioner is for amendment under Order

VI Rule 17 and not a counter claim as contemplated under

Order VIII Rule 6A of the CPC. The application is clearly titled

as an application seeking amendment under Order VI Rule 17

of the CPC with a prayer to amend the written statement and

not with a prayer raising counter claim with the relief claimed

therein. As observed hereinabove, the application of the

petitioner for similar relief directing the respondent herein to

deposit the advance amount of Rs.5,00,000/- has been rejected

vide Exh.74 since the application was not maintainable and for

seeking any relief by the defendant it was necessary to file a

counter claim. In spite of rejection of the application on the

ground that the counter claim is not filed. The petitioner has

yet again filed an application under Order VI Rule 17 which is

now requested to be treated as the counter claim. This prayer

made by the petitioner cannot be allowed since there is no

such averment made in the application nor it is permissible

under law to convert an order seeking amendment into a

counter claim. I do not find any ground for interfering in the

order passed by the learned Civil Judge Junior Division,

Nanded made out by the petitioner. Hence, the writ petition

does not deserve any interference.
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14.     As such the writ petition is dismissed.


15.     However, it is made clear that the petitioner may resort

to any remedy as available under law.




                                (MANJUSHA A. DESHPANDE, J.)

                                 ...

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