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2005 DIGILAW 653 (PAT)

Ram Bilas Prasad v. Sudhamayi Sinha

2005-07-27

S.N.HUSSAIN

body2005
Judgment 1. Heard learned counsel for the parties. 2. Petitioner is plaintiff in Title Suit No. 17 of 2000 which was filed by him for declaration that the plaintiff and the defendants have right to use the disputed road which is the subject matter of the suit and the defendants have no right to fix a gate towards northern and southern side of the suit land and for further declaration that the defendants have no right to construct temporary Jhopari and to plant trees over the disputed land. 3. The petitioner is aggrieved by order dated 11.12.2004 passed in the aforesaid suit by which the learned Munsif-Vlll, Biharsharif, Nalanda allowed the petition of the defendants tiled under the provision of Order 8 Rule 6 of the Code of Civil Proce. dure and admitted the counter claim filed on their behalf. 4. Learned counsel for the petitioner submits that earlier a similar petition was filed by the defendants which was allowed by the court below on 14.8.2004 but this Court in Civil Revision No. 1121 of 2004 set aside the said order and allowed the revision by order dated 29.9.2004 (Annexure-1). Hence, the petition filed by the defendants for the same relief was not maintainable. 5. Learned counsel for the petitioner further claims that the defendants petition was also not in the form of plaint as no cause of action was mentioned therein which was necessary in the matter as the Hon ble Apex Court has held in a case of Mahendra Kumar and another vs. The State Bank of Madhya Pradesh and others reported-in A.I.R. 1987 S.C. 1395 that "counter claim can be filed only when the cause of action accrues and for that purpose the limitation has to be counted from the date when right to sue had accrued but there is no pleading in the defendants counter claim as to when.the right to sue had accrued." Learned counsel further placed reliance upon another decision of the Hon ble Apex Court in a case of Jag Mohan Chawla vs. Dera Radha Swami Satsang and others reported in A.I.R. 1996 SC 2222 in which the Hon ble Supreme Court had decided a similar matter. Learned counsel for the petitioner further submits that even Schedule of the land was not given in the counter claim. Hence, it cannot be ascertained as to regarding which land they are raising counter claim. 6. Learned counsel for the petitioner further submits that even Schedule of the land was not given in the counter claim. Hence, it cannot be ascertained as to regarding which land they are raising counter claim. 6. Learned counsel for the petitioner further avers that by the impugned order the learned court below has merely observed that the counter claim is necessary for proper adjudication of the suit and that by admitting the counter claim there would be no change in the nature of the suit. He submits that these situation are not the consideration which are required in law for appreciating the validity of a counter claim. He submits that these matters can only be considered for a petition for amendment and, hence, on the same ground the earlier petition for counter claim raised by the defendants was rejected by this Court. Hence, he submits that the impugned order of the learned court below is illegal, arbitrary, perverse and fit to be set aside. 7. On the other hand, learned counsel for the defendant-opposite parties submits that it is clear from the counter claim (Annexure-2) that names of the parties were stated, the statements of facts were mentioned, the valuation of the suit was given, relief was also claimed and cause of action was also mentioned but only the date of cause of action could not be typed due to mistake. He further submits that the cause of action was clear from paragraph no. 14 of the written statement in which it was stated that when during X mas vacation defendant no.1 went to her husbands place encroachment was made and when she returned she saw the said encroachment. Hence, he submits that all the requirements of law with respect to a counter claim has been fulfilled and the learned court below after considering the same has rightly allowed the same and hence the impugned order required no interference. 8. After hearing learned counsel for the parties and after perusal of the materials on record it is quite apparent that on the earlier occasion this Court has allowed C.R. No. 1121/2004 by order dated 29.9.2004 (Annexure-1) on the ground that neither the petition was in the form of counter claim nor the court had considered it as a counter claim. After hearing learned counsel for the parties and after perusal of the materials on record it is quite apparent that on the earlier occasion this Court has allowed C.R. No. 1121/2004 by order dated 29.9.2004 (Annexure-1) on the ground that neither the petition was in the form of counter claim nor the court had considered it as a counter claim. Hence, when the two requirements were not fulfilled there was no occasion for the learned court below to allow any counter claim. But it appears that after the passing of the said order the defendants filed a fresh petition in the form of a counter claim for which this Court had not debarred them. In that regard it is quite apparent from the records that the defendants have mentioned in the counter claim the details of the parties, statement of facts, the valuation of the claim and the reliefs but with respect to cause of action they have stated that all the facts except the date on which the cause of acton has accrued. No doubt the date of cause of action is necessary in such matter as the counter claim has to be treated as independent plaint, but since the mention of the date has already been made in the written statement and the omission in the counter claim seems to be a clerical error, I am not inclined to interfere in the matter only on this ground. Further more the learned court below has considered the matter in detail with respect to the respective claims regarding counter claim and he has added that it is necessary for proper adjudication of the suit and would not change the nature of the suit which in my view cannot be said to be absolute extraneous. 9. In the aforesaid facts and circumstances of the case, I do not find any illegality or jurisdictional error in the impugned order and accordingly, this civil revision is dismissed. 10. However, the plaintiff should get the date of cause of action on which the right to sue accrued inclined in the counter claim by way of amendment which should be filed in the court below within one month from today, failing which the learned court below will pass appropriate order in that regard.