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2007 DIGILAW 723 (KAR)

SYED IMTIYAZ v. MILKA VATSALA

2007-11-05

K.BHAKTHAVATSALA

body2007
ORDER The petitioner/defendant in O.S. No. 368 of 2007 on the file of Civil Judge (Junior Division), Mysore, is before this Court praying for quashing the impugned order dated 27-9-2007 passed on LA. No. 1 filed in the suit at Annexure-G. 2. Keeping in view the nature of the impugned order passed, notice to the respondent/plaintiff is dispensed with. 3. For the purpose of convenience and better understanding, the petitioner and the respondent are hereinafter referred to as 'the defendant' and 'the plaintiff, respectively, as arrayed in the suit. 4. Heard arguments. 5. The brief facts of the case leading to the filing of the writ petition may be stated as under: The plaintiff filed a suit in O.S. No. 368 of 2007 on the file of Civil Judge (Junior Division) at Mysore, against the defendant for ejectment, recovery of arrears of rent and damages. The defendant entered appearance and filed written statement dated 1-9-2007 under Order 8, Rule 6-A of the Civil Procedure Code, 1908, contending that on 17-6-2007 the plaintiff had offered to sell the suit schedule property for a consideration of Rs. 5,20,000/- and paid the plaintiff a sum of Rs. 1,00,000/- towards earnest money etc., and prayed for judgment and decree for specific performance of the agreement. The defendant has valued the counter-claim at Rs. 5,20,000/- and paid Court fee of Rs. 34,575/- by way of demand draft drawn on Canara Bank, Brindavan Extension Branch, Mysore. It is stated in para 5 of the counter-claim that if the Court comes to a conclusion that the suit cannot be adjudicated, the Court fee paid towards counter-claim may be returned to the defendant to enable him to urge his rights after the case is transferred to the jurisdictional Court. The plaintiff has filed written statement to the counter-claim. On 10-9-2007 the defendant filed an application (LA. No. D under Order 7, Rule 10-A(2) read with Order 8, Rule 6-A(4) of the CPC praying to transfer the .counter-claim to the Principal Civil Judge (Senior Division), Mysore. The plaintiff filed objection to LA. No. 1 contending that the suit of the plaintiff cannot be transferred. The Trial Court dismissed LA. No. 1, giving liberty to the defendant to file a separate suit. This is impugned in this writ petition. 6. The plaintiff filed objection to LA. No. 1 contending that the suit of the plaintiff cannot be transferred. The Trial Court dismissed LA. No. 1, giving liberty to the defendant to file a separate suit. This is impugned in this writ petition. 6. The learned Counsel for the petitioner submits that the Trial Court failed to follow the procedure applicable regarding transfer of counter-claim to the competent jurisdictional Court. 7. According to Rule 6-A of Order 8 of the CPC, a defendant has a right of pleading of counter-claim as against the plaintiff, provided such a counter-claim shall not exceed the pecuniary limits of jurisdiction of the Court. The plaintiff is given 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. Sub-rule (4) of Rule 6-A of Order 8 states that the counter-claim shall be treated as a plaint and governed by the Rules applicable to plaints. Under Rule 10 of Order 7 the counter-claim has to be treated as a plaint subject to the provisions of Rule 10-A of Order 7 and the same shall be returned for being presented to the Competent Court. As per sub-rule (2) to Rule 10 of Order 7 of the CPC on returning of a counter claim (plaint), the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it. But the Trial Court has not followed the procedure prescribed in that regard. Therefore, the impugned order is liable to be quashed. 8. In the result, the writ petition is allowed and the impugned order dated 27-9-2007 at Annexure-G on the file of Civil Judge (Junior Division) is quashed and the Trial Court is directed to pass appropriate orders in the light of the observation made above. Since notice to the plaintiff has been dispensed with, the petitioner is directed to send copy of this order to the respondent/plaintiff, for information.