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 F INAL 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 2026:BHC-AUG:40067 2 WP.8425-25 (Final Order).odt 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 3 WP.8425-25 (Final Order).odt 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 4 WP.8425-25 (Final Order).odt 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 5 WP.8425-25 (Final Order).odt 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 6 WP.8425-25 (Final Order).odt 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 7 WP.8425-25 (Final Order).odt 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.” 8 WP.8425-25 (Final Order).odt 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 9 WP.8425-25 (Final Order).odt 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 10 WP.8425-25 (Final Order).odt 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. 11 WP.8425-25 (Final Order).odt 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.) ... vmk/-