Judgment ( 1. ) BEING dissatisfied with the ex parte judgment and decree dated 1-11-1985 passed by the learned VIth Additional District Judge, Jabalpur, in Civil Suit no. 17-A/84, the defendant Nos. 2 and 3 (who later on became defendant Nos. 1 and 2 after the death of original defendant No. 1, Suchitra), have preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code ). ( 2. ) THE plaintiff filed a suit for partition of house and land adjoining to it situated in Napier Town of the Jabalpur city (more fully described in the schedule to the plaint) and mesne profits and also claimed past mesne profit as rs. 5500/- and future mesne profit @ 150/- per month till actual physical possession is delivered to him. The relationship of the parties, as is evincible from the pleadings, is apposite to setforth by a family-tree :- ( 3. ) THE deceased/defendant Smt. Suchorita Mukherjee was the mother while the present appellant No. 1 Smt. Archana Kumar is the real sister of the plaintiff. Smt. Archana Kumar got married to Shri S. N. Kumar, appellant no. 2. Said Shri N. N. Mukherjee died on 15-11-1944 and after his death his widow Smt. Suchorita and the son - plaintiff Purendu Prakash Mukherjee succeeded to the property of the deceased. ( 4. ) THE case putforth by the plaintiff is that the suit property belonged to his father and certain constructions were carried out in the suit property somewhere in the year 1970-71. According to the plaintiff, some part of the property was under the possession of the defendants and his mother smt. Suchorita Mukherjee used to receive the rent from them and the amount so collected was spent on repairs, construction and to do all that to avoid impairment to the house. ( 5. ) IN the plaint, it has been pleaded that immediately after the death of his father, the plaintiff got some job in Calcutta, therefore, he left jabalpur and the suit house was being looked after by his mother Smt. Suchorita Mukherjee. The plaintiff came to Jabalpur some time in the year 1973, when he was informed that his mother had got mutated her name in the municipal records as the sole owner. The plaintiff came to Jabalpur some time in the year 1973, when he was informed that his mother had got mutated her name in the municipal records as the sole owner. The plaintiff thereafter filed his objections in the Municipal Corporation, Jabalpur, which was opposed to by his mother. The plaintiff, feeling aggrieved by the denial of due right, filed the aforesaid suit for partition, possession and mesne profits. ( 6. ) THE deceased/defendant Smt. Suchorita entered contest and filed a written statement pleading, inter alia, that during the life time of her husband, the subject-matter of the suit was partitioned. According to her, the value of the house properties was in proximity of Rs. 12,000/ -. The family had the business in the name and style of "darjiling Tea Stores", which was looked after and managed by the plaintiff but the investments were made by Late Shri n. N. Mukherjee. As setforth by her, the plaintiff left for Calcutta, after disposing the said business and retained the amount obtained from sale as it was given to him towards his share. Apart from the said sum, certain ornaments were also given to his wife, to complete the partition. After some time, the plaintiffs wife died and he re-married. Smt. Suchorita Mukherjee could not get the house renovated or repaired from the meagre amount of rent. She had pleaded that to carry out repairs and expansion of the suit house, she took a loan of Rs. 21,000/- from her son-in-law Shri S. N. Kumar (appellant No. 2) and also availed a loan of Rs. 13,000/- from her daughter (appellant No. 1 ). According to her, because of the said transaction, she mortgaged the suit property in favour of said Shri S. N. Kumar. She pleaded that during the life time of her husband, partition was effected and the rest of the property came in her possession. She further pleaded that plaintiff left Jabalpur some where in the year 1951 and did not come back till 1973. It has also been put forth by her in the written statement that some where in the year 1951, plaintiff came to Jabalpur and asked her to dispose of the property, however, she refused and denied the title of the plaintiff. ( 7. ) SMT. It has also been put forth by her in the written statement that some where in the year 1951, plaintiff came to Jabalpur and asked her to dispose of the property, however, she refused and denied the title of the plaintiff. ( 7. ) SMT. Suchorita further pleaded that in the year 1954, the plaintiff wrote letters to her and had threatened her of legal action. She replied that property had already been partitioned as such the plaintiff had no right, title and interest therein. In the year 1973, the plaintiff came to Jabalpur but she did not permit his son to enter in the suit premises,. Taking such a stance, she resisted the claim for partition. It was her further case, even if, the suit property was not partitioned, then also the plaintiff had no right in the suit property because his rights were denied in the year 1951 and thereafter in the year 1954 and he was not permitted to enter in the suit premise in the year 1973, therefore, the rights which the plaintiff had, stood extinguished. The defendant no. 2 (now defendant No. 1/appellant No. 1) by filing separate written statement pleaded that the suit property had already been partitioned, her mother suchorita Mukherjee was in enjoyment and possession of the absolute owner and during her life time, she had executed a Will and bequeathed the suit property in her favour and by virtue of the Will she has become the exclusive owner of the suit property. ( 8. ) DEFENDANT No. 3 (appellant No. 2) filed separate written statement and also filed a counter claim. He had supported the case of Smt. Suchorita Mukherjee (original defendant No. 1) and his wife Smt. Archana kumar (appellant No. 1) simultaneously pleaded that the property was mortgaged with him and therefore, he could not be dis-possessed. He had spent a sum of Rs. 21,000/- to carry out certain construction and necessary repairs of the suit house. It is also his case that there was an oral agreement between his mother-in-law and him that he would make investment in the construction. For these expenses made by him, Smt. Suchorita Mukherjee had mortgaged the property and he was entitled to get, back his money. 21,000/- to carry out certain construction and necessary repairs of the suit house. It is also his case that there was an oral agreement between his mother-in-law and him that he would make investment in the construction. For these expenses made by him, Smt. Suchorita Mukherjee had mortgaged the property and he was entitled to get, back his money. In the alternative, it was averred by him that if the partition was not proved, then there should be declaration that the plaintiff had only l/3rd share in the property. ( 9. ) IT is not in dispute that during the pendency of this suit, original plaintiff No. 1 Suchorita left for heavenly abode and as her legal representatives were already on record as plaintiff and defendant No. 2, her name was deleted from the cause-title of the suit and defendant Nos. 2 and 3 were conferred the description as defendant Nos. 1 and 2 respectively. ( 10. ) THE learned Trial Court after framing the issues recorded the evidence of the plaintiff and thereafter gave opportunity to the defendant to cross-examine the plaintiffs witnesses. As on the date of hearing the defendants were not available, the Court proceeded ex parte and closed the right of the defendants to cross-examine and fixed the case for the delivery of judgment. However, the judgment could not be delivered and the case was adjourned on some dates, but before the judgment could be delivered, the defendants moved an application under Order 9 Rule 7 of the Code. This application was dismissed by the learned Trial Judge as not maintainable. Ultimately, the learned Trial Judge passed the impugned judgment and decree, decreeing the suit of the plaintiff. ( 11. ) THE learned Trial Judge held that the plaintiff has proved that the property belonging to his father Shri N. N. Mukherjee; that it was liable to be partitioned; that there was no previous partition; that the suit was not barred by limitation; and that the plaintiff had never been separated from his father during his life time. On the aforesaid base, the learned Trial Judge held that the plaintiff is entitled to half share and separate possession in the suit property and also to mesne profits. The learned Trial Judge held that the decision in the earlier Civil Suit No. 63-A/1972 did not operate as res judicata between the parties. ( 12. On the aforesaid base, the learned Trial Judge held that the plaintiff is entitled to half share and separate possession in the suit property and also to mesne profits. The learned Trial Judge held that the decision in the earlier Civil Suit No. 63-A/1972 did not operate as res judicata between the parties. ( 12. ) IT will be apposite to mention that after the rejection of their application filed under Order 9 Rule 7 of the Code, the defendants had taken up the matter by filing Civil Revision No. 21/86 in this Court. The said revision came up for hearing on 10-1-1986, but, as by that time the ex parte judgment and decree had already been passed by the Trial Court, the revision was dismissed. ( 13. ) IT is further relevant to mention that the appellant filed an application under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree passed against her. The said application was registered as MJC No. 30/86 and the same was rejected vide order dated 15-1-1986 by the Trial Court. The order was assailed by the defendants by preferring a miscellaneous Appeal No. 19/86 which came up for hearing before this Court and was finally dismissed on 5-4-1994 on the ground that the defendants could not show sufficient grounds to condone their non-appearance on the date fixed. The matter was taken up to the Supreme Court in Special Leave Petition no. 1193/94 and before the Apex Court the defendants withdrew their petition and accordingly it was dismissed as withdrawn. ( 14. ) TO continue the narration, this appeal came up for hearing before the learned Single Judge of this Court and a preliminary objection was raised by the learned Counsel for the respondents that as the proceedings under Order 9 Rule 13 of the Code had attained finality, the present First appeal filed under Section 96 of the Code is not maintainable. The learned single Judge vide its judgment dated 22-8-1996 held that the appeal was not maintainable and Resultantly dismissed the same on that score. ( 15. ) IN appeal the respondent No. 1/plaintiff did not file any cross-objection, however, he filed an application under Order 41 Rule 33 of the code. The learned single Judge vide its judgment dated 22-8-1996 held that the appeal was not maintainable and Resultantly dismissed the same on that score. ( 15. ) IN appeal the respondent No. 1/plaintiff did not file any cross-objection, however, he filed an application under Order 41 Rule 33 of the code. Respondent No. 2 Bhanu Kumar Jain was joined as respondent No. 2, on the basis of an application filed by him on the foundation that he had purchased the property during the pendency of the appeal. He filed a cross objection on 26-6-1996. The learned Single Judge while deciding the appeal held that cross-objection filed by Bhanu Kumar were not maintainable and application filed under Order 41 Rule 33, CPC by respondent No. 1/plaintiff was also found to be not maintainable and thus declined to advert to the same on merits. ( 16. ) BOTH the parties preferred appeals under Clause 10 of the letters Patent. L. P. A. No. 250/96 was preferred by the present appellants/defendants and L. P. A. No. 251/96 was preferred by the plaintiff. The Division bench of this Court, which heard these Letters Patent Appeals expressed doubts with regard to the correctness of the decision rendered in the case of sumera Vs. Madanlal, AIR 1989 MP 224 , wherein it had been held that an appeal filed under Section 96, CPC as not maintainable once there is rejection of the application of the defendants filed under Order 9 Rule 13 of the Code and accordingly recommended the matter to be considered by the Larger bench and ultimately the matter being referred, the Full Bench of this Court vide its judgment dated 6-4-2000 held that even after the dismissal of the application under Order 9 Rule 13 of the Code, a regular first appeal under section 96 (2) of the Code is maintainable. We think it proper to reproduce the conclusions arrived at by the Full Bench :- "22. Accordingly, we hold that even after dismissal of the application under Order 9 Rule 13 of the Code a regular first appeal under Section 96 (2) of the Code is maintainable. 23. Having held that a regular appeal under Section 96 (2) of the code is maintainable against an ex parte decree, we further observe that a proceeding under Order 9 Rule 13 of the Code and a regular appeal can simultaneously be prosecuted. 23. Having held that a regular appeal under Section 96 (2) of the code is maintainable against an ex parte decree, we further observe that a proceeding under Order 9 Rule 13 of the Code and a regular appeal can simultaneously be prosecuted. It would be open to the affected party to pray for stay of further proceedings in an appeal till the application under Order 9 Rule 13 of the Code is decided. It would be within the discretion of the appellate Court to pass appropriate order in this regard. 24. Let the appeals be placed before the Division Bench for disposal. " ( 17. ) AFTER the law was settled by the Full Bench, the Division Bench passed the order in both the Letters Patent Appeals on 13-7-2000 and decided the appeals as under :- "the legal position has been made clear by the Full Bench decision of this Court dated 6-4-2000. Therefore, the judgment and decree rendered by the learned Single Judge dated 22-8-1996 in F. A. No. 109/86 are set aside and the case is sent back to the learned Single Judge for fresh decision. " ( 18. ) AFTER the aforesaid order, the present appeal was listed for hearing on 30-10-2001 and 1-11-2001 before the learned Single Judge of this court, who vide order dated 4-12-2001 held that the matter required to be listed for hearing before the Division Bench in view of the amendment pertaining to valuation. The order dated 4-12-2001 is reproduced under :- "on careful perusal of the case it is noted that the plaintiff had filed this civil suit for partition valuing his claim at Rs. 1,54,000/ -. Such suit was decreed in full by the learned Trial Judge. On 30-1-1986 the first appeal was filed valuing the claim at rs. 1,54,000/- and a Court fees of Rs. 6,770/- was affixed. The case was being dealt with by the Division Bench. On 16-2-1987 the appellant filed I. A. No. 961/87 for correction of valuation. New valuation was put to Rs. 77,000/ -. This application was allowed and the case was listed before the Single Judge. However, later on, on 15-7-96 the appellant once again applied for correction of the valuation of the appeal. This time he claimed such valuation to be Rs. 1,54,000/- and submitted additional Court fees of Rs. 6,355/ -. However, this application remained undecided. 77,000/ -. This application was allowed and the case was listed before the Single Judge. However, later on, on 15-7-96 the appellant once again applied for correction of the valuation of the appeal. This time he claimed such valuation to be Rs. 1,54,000/- and submitted additional Court fees of Rs. 6,355/ -. However, this application remained undecided. The application is likely to affect the jurisdiction of the Single Bench, hence the same be listed before appropriate Bench for decision. " ( 19. ) IT is in this manner, this appeal has come up for hearing before us. Shri A. D. Deoras, learned Counsel for the appellant assailing the impugned judgment submits that the learned Trial Judge has grossly erred in law by proceeding ex parte against the defendants. The learned Counsel further canvassed that the appellant No. 2, Surendra Kumar, filed the counter claim and therefore it was incumbent upon the learned Trial Judge to decide the counter claim filed by the defendant in view of the mandate contained in Order 8 Rule 6 (D) of the Code. Thus, according to the learned Counsel, the judgment and decree be set aside and the case be remitted to the Trial Court. The learned Counsel has drawn our attention to the various order-sheets passed by the learned Trial Judge to pyramid the proponent that the suit could not have been proceeded ex parte and the Court below has so done on fallacious assumptions and erroneous presumptions. ( 20. ) COMBATING the aforesaid submissions, Shri Arvind Ghosh, learned Senior Advocate for the respondents by raising a preliminary objection regarding the maintainability of the appeal submits that the same be dismissed as not maintainable. On merits he contends that the learned Trial Judge did not err in passing the ex parte decree. He has also putforth that his cross-objections be allowed in to to as it so deserves. ( 21. ) AFTER hearing the rival contentions of the parties, we are of the considered view that the learned Trial Judge has erred in law, in proceeding ex parte against the defendants and decreeing the suit ex parte. ( 22. ) WE shall first deal the preliminary objection raised by the learned Counsel for the respondent regarding the maintainability of the appeal. ( 22. ) WE shall first deal the preliminary objection raised by the learned Counsel for the respondent regarding the maintainability of the appeal. According to us, the objection is devoid of any force in view of the judgment pronounced by the Full Bench of this Court on 6-4-2000 (since reported in AIR 2001 MP) which we have already referred to hereinabove. Further, while disposing of the L. P. A. , this Court on 13-7-2000 directed to decide the First Appeal afresh. It appears that the order disposing the L. P. A. has attained finality and it has not been pointed out to us that any Special Leave petition has been filed before the Supreme Court. Thus, the preliminary objection raised by the respondent regarding the maintainability of the appeal is hereby rejected. ( 23. ) PRESENTLY to the contentions regarding merits. On 13-6-1985, the learned Trial Judge framed an additional issue and fixed the case for evidence 3-8-1985. It is relevant to reproduce the order-sheet of 3-8-1985 which reads as under:- ( 24. ) ON a perusal of the said order-sheet dated 3-8-1985, it reveals that the defendants were permitted to cross-examine the plaintiff on payment of cost of Rs. 200/-, and it was made clear that in case costs is not paid, right of cross-examination would be foreclosed. The defendants were also directed to produce their evidence because additional issue which had been framed, the burden of proof rested on them. The matter was taken up on 7-10-1985. The order sheet of 7-10-1985 reads as under:-"7-10-85 ( 25. ) ON going through the order-sheet of this date, we find that the trial Court proceeded against defendant No. 2 only and right of his cross-examination stood demolished but the learned Trial Judge did not pass any order against defendant No. 1. On 11-10-1985, the plaintiff in person was present, however, as the lawyers were on strike, matter was adjourned to 14-10-1985 for hearing. Again on 14-10-1985, the plaintiff was present but his Counsel remained absent on account of strike. This time the learned Trial Judge fixed the case to 25-10-1985 for delivery of judgment. As perused from the records, on the same date parties were not present and the Lawyers were reported to be on strike. Again on 14-10-1985, the plaintiff was present but his Counsel remained absent on account of strike. This time the learned Trial Judge fixed the case to 25-10-1985 for delivery of judgment. As perused from the records, on the same date parties were not present and the Lawyers were reported to be on strike. The learned Trial Judge did not pass the judgment on that date which was already fixed by him and adjourned the matter to 31-10-1985 by writing Date 31-10-85 We are unable to understand how on 14-10-1985, the Trial Court fixed the case for pronouncement of the judgment to 25-10-1985 and when on this date the judgment was not pronounced, why the case was not fixed for the pronouncement of judgment, but, was fixed for some other purpose which has not been mentioned in the order-sheet. On 30-10-1985, an application under Order 9 Rule 7 was filed which was later on rejected. On going through these order-sheets, we are of the view that the order of learned Trial Judge on 31-10-1985 holding that application is not maintainable is contrary to the law because on 25-10-1985, the judgment was not pronounced and the matter was not kept either for final argument or to pronounce the judgment, but, on the contrary the matter was adjourned to 31-10-1985. On 30-10-1985, an application under Order 9 Rule 7 of the Code was filed which was rejected on 31-10-1985. According to us, when the suit was not fixed either for hearing or for the pronouncement of the judgment, the application filed under Order 9 Rule 7 of the Code was maintainable and learned Trial Judge has grossly erred in rejecting the same. ( 26. ) IN the foregoing paragraphs, we have already given our anxious consideration that the Trial Court proceeded ex parte against defendant No. 2 only and the right of cross- examination as far as he is considered stood extinguished. There is no order to proceed ex parte or to foreclose the right of cross-examination of the defendant No. 1. In this view of the matter, without providing opportunity of cross-examination to defendant No. 1, the learned trial Judge could not have proceeded and eventually delivered the judgment. ( 27. ) IT is apposite to state that the defendant filed counter claim under Order 8 Rule 6 (A) of the Code. In this view of the matter, without providing opportunity of cross-examination to defendant No. 1, the learned trial Judge could not have proceeded and eventually delivered the judgment. ( 27. ) IT is apposite to state that the defendant filed counter claim under Order 8 Rule 6 (A) of the Code. The provisions of Order 8 Rule 6 (A)to Rule 6 (G) were inserted by way of amendment by the Amendment Act, 1976 in the Code. Rule 6-A reads as under :- "6-A. 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, byway 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. " ( 28. ) SUB-RULE (2) provides that counter claim shall have the same effect as the cross-suit so as to enable the Court to pronounce final judgment in the same suit. Sub-rule (4) provides that counter claim shall be treated as a plaint and would be governed by the rules applicable to the plaints. Rule 6 (D)of Order 8 reads as under:- "6 (D ). Effect of discontinuance of suit-If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. " (Emphasis supplied) ( 29. Rule 6 (D)of Order 8 reads as under:- "6 (D ). Effect of discontinuance of suit-If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. " (Emphasis supplied) ( 29. ) UNDER this rule, if the suit of plaintiff is stayed, dis-continued or even dismissed, the counter-claim may nevertheless be proceeded with as in the case of counter claim written statement is really in the nature of a plaint. So even if the plaintiffs suit is not pressed or given up or withdrawn or collapses for whatever reason, the defendant has still the right to get the decree of a counter-claim as claimed in the written statement. In this context, it is profitable to refer to certain decisions which are M/s Daga Films Vs. M/s Lotus production and others, AIR 1977 Cal 312 , Suman Kumar Vs. St. Thomas School and Hostel and others, AIR 1988 Punjab and Haryana 38, Bhim Sain Vs. Laxmi narain, AIR 1982 Punjab and Haryana 155. The learned Single Judge of this court in the case of Shivkalibai (Smt.) and others Vs. Smt. Meeradevi and others, 1991 Revenue Nirnay 262, has held that if the suit of plaintiff is dismissed on ground of non-joinder of necessary party, the defendant is entitled to a decree of his right as claimed/prayed. ( 30. ) THE legal position, thus, is clear that in a suit of plaintiff where defendant had filed a counter-claim it has to be decided even if the suit of plaintiff is decided exparte. The Trial Court totally overlooked this legal aspect of the matter and without deciding the counter claim of the defendant, decreed the suit ex parte. In view of the matter, the judgment and decree of learned trial Court can not be sustained in the eye of law. 30-A. We will be failing in our duty if do not take note of the fact that an application forming the subject-matter of LA No. 3470/2002 has been filed by the respondents under Order 41 Rule 27 of the Code for taking certain documents on record. On a perusal of the aforesaid petition, it is perceivable that there is allegation that the appellant No. 1 Smt. Archana Kumar has alienated the property in respect of some persons. Be that as it may. On a perusal of the aforesaid petition, it is perceivable that there is allegation that the appellant No. 1 Smt. Archana Kumar has alienated the property in respect of some persons. Be that as it may. The alienation, if any, made by Smt. Archana Kumar would not make any different for deciding the present lis in question. Needless to emphasis, as we are remitting the matter to the learned Trial Judge, it will be open to the parties aggrieved to fight out their rights in accordance with law before the appropriate forum. We had understood to have said the purchasers, if any, have no right in law, we keep the issue open. ( 31. ) CONSIDERING from both the spectrums, we have no hesitation in our mind that the appeal deserves success and is hereby allowed. The impugned judgment and decree of Trial Court is hereby set-aside. The parties to bear their own costs. Before parting we would like to mention that the suit was filed more than two and half decades back. Accordingly, the Trial Court is directed to decide the case as early as possible preferably within a period of six months from the date of receiving the copy of this judgment. First Appeal allowed.