1. The petitioner is aggrieved by the order passed by the learned Civil Judge at Basavakalyan on the application in I.A.No.VI filed under Order VI Rule 17 of CPC by the respondent thereby permitting the respondent/defendant to raise the counter claim.

2. The undisputed facts are that the petitioner/plaintiff filed a suit in O.S.No.151/2015 for the relief of bare injunction. The respondent/defendant filed her written statement on 03.07.2018. Based on the contention urged by the parties, issues were framed and trial commenced and after P.W.1 was examined-in-chief, the defendant came up with an application in I.A.No.VI under Order VI Rule 17 of CPC with a prayer to amend the written statement wherein he sought for a counter-claim by making following prayer namely;

"a) It may be declared that, the disputed encroached portion measuring East-West: 52 ft. and North-South: 12 ft. of the house No.48 of Kaali Galli B.Kalyan, is of the defendant.

b) The plaintiff may be dispossessed from the said encroached illegal portion by the plaintiff by the plaintiff by vacating the said portion, and keeping the said portion as vacant for the use of the defendant.

c) Mandatory injunction may be granted directing the plaintiff to demolish the encroached southern portion of the house site of the defendant, of House No.48, of B.Kalyan, measuring East-West: 52 ft. and North-South: 12 ft. of Kaali Galli Basavakalyan, which has been illegally encroached by the plaintiff. If the plaintiff fails to demolish the same, may be got demolished through the Bailiff of the court or any other officer, appointed by this Hon'ble Court, at the cost of the plaintiff."

3. The contention of the learned counsel for the petitioner/plaintiff is that counter-claim made by the defendant is barred under Order VIII Rule 6A of CPC which prohibits any counter-claim in the suit after 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 claim for damages or not.

4. The learned counsel for the respondent however, would submit that necessary averments were made by the defendant in the original written statement, but the prayer was omitted and therefore the relief of mandatory injunction was prayed by way of amendment under Order VI Rule 17 of CPC, and in such a situation, the defendant is entitled to make a counter-claim for possession of the land as held by the Hon'ble Supreme Court in the case of Gurubachan Singh Vs. Bhag Singh & Ors., (1996) 1 SCC 770.

5. I have gone through the written statement filed by the defendant. In the written statement it was contended that an attempt was made by the plaintiff to encroach 12 feet area of southern side of the defendant's property and it was stated that after the survey of the land, the CMC officials demolished some portions of the encroached area. There were no allegations whatsoever that any portion of the land belonging to the defendant has been encroached by the plaintiff either before or subsequent to the suit. Therefore, the argument of the learned counsel for the respondent that the proposed amendment was only clarificatory and was intended to bring the prayer in conformity with the initial pleadings is not correct. By the proposed amendment, defendant sought to introduce a totally new cause of action. In that view of the matter, in view of the bar contained in Order VIII Rule 6-A of CPC the trial court could not have allowed the counter-claim delivering the defence or after the expiry of the time limit for delivering his defence.

6. For the above reason, impugned order cannot be sustained in the teeth of Order VIII Rule 6-A of CPC.

Accordingly, the petition is allowed.

The impugned order dated 11.11.2019 passed by the trial court on I.A.No.VI insofar as permitting the defendant to raise the counter-claim is rejected.