Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1261 (MP)

OM PRAKASH MALVIYA v. SHAMBHUNATH SINGH

2009-11-12

PRAKASH SHRIVASTAVA

body2009
Judgment ( 1. ) THIS revision petition under Section 115 of the cpc has been filed against the order dated 23. 3. 09 passed by the Trial Court rejecting the application under Order 7 Rule 11 CPC filed by the applicants for dismissal of the counter claim. ( 2. ) THE facts are that the respondent no. 1 (plaintiff) had filed a Civil Suit 8-A/06 pleading that he is lawfully elected Regional Secretary of the Regional Office,singraouli of Rashtriya Colliery Mazdoor, Sangh. He also claimed a relief that the defendant no. 1 to 7 (applicant herein)Jbe restrained from permanent injunction from interfering in the working of the respondent no. 1 as Secretary of the Regional officer of the Sangh. The suit was opposed by the applicants by filing the written statement. The separate written statement and counter claim was filed by Aditya narayan Mishra, the respondent no. 3, who was defendant no. 9 in the suit. In the counter claim the respondent no. 3 claimed a relief that he is legally elected regional Secretary of Rashtriya Colliery Mazdoor Sangh, and further that a relief of permanent injunction restraining the plaintiff as well as defendant no. 1 to 7 from interfering in his working. ( 3. ) THE present applicants filed written statements to the counter claim of the respondent no. 3 and opposed it. The respondent no. 1 later did not appear in the suit and the suit was dismissed for want of prosecution but the trial court continued the proceeding in the counter claim filed by the respondent no. 3. ( 4. ) THE applicants filed an application under Order 7 Rule 11 (d ). r/w Section 151 CPC for dismissal of the counter claim on the ground that the counter claim can not continue in view of the provision contained in Order 8 Rule 6 (d ) of CPC, since the suit has been dismissed. ( 5. ) THE trial court by the impugned order dated 23. 3. 09 rejected the application under Order 7 Rule 11 of CPC filed by the applicants. ( 6. ) LEARNED counsel appearing for the applicants submits that the trial court has committed error in rejecting the application under Order 7 Rule 11. Once the suit is dismissed the counter claim can not continue since such counter claim is solely against the defendants. ( 6. ) LEARNED counsel appearing for the applicants submits that the trial court has committed error in rejecting the application under Order 7 Rule 11. Once the suit is dismissed the counter claim can not continue since such counter claim is solely against the defendants. Learned counsel appearing for the applicants in support of his submission relied upon the judgment in the matter of Udhavdas Tyagi Vs. Srimurti Radhakrishna Mandir, Dehrighat reported in 2002 (1) M. P. Weekly Notes-31 , in the matter of Mukund Lal and another Vs. Ghanshyam and others reported in I. L. R. 2009, M. P. 2023, in the matter of Rohit Singh and others vs. State of Bihar (now State of Jharkhand) reported in AIR 2007 SC 10 . ( 7. ) LEARNED appearing counsel for the respondents submitted that the counter claim filed by the respondent no. 3 is not affected by dismissal of the suit and it can continue independently. He further submitted that the relief of counter claim is not only against the defendants but against the plaintiffs also. ( 8. ) ORDER 8 Rule 6 (a) permits the defendant in a suit to set up any right or claim in respect of cause of action accruing to the defendants against the plaintiff by way of counter claim. Under Order 8 Rule 6 (a) Sub Rule 4 counter claim is treated as plaint and it is governed by the rules applicable to the plaint and Order 8 Rule 6 D which deals with he affect of discontinuance of suit 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. ( 9. ) UNDER the aforesaid scheme of CPC if the counter claim has been filed by the defendants setting up his claim against the plaintiffs and other co-defendants and if the suit is discontinued subsequently for one reason or the other, the counter claim does not come to an,end and it can be proceeded with by the trial court. The language of Order 8- Rule 6 A, however, makes it clear that the counter claim solely against the co-defendant can not be filed. ( 10. ) IN the present case the respondent no. The language of Order 8- Rule 6 A, however, makes it clear that the counter claim solely against the co-defendant can not be filed. ( 10. ) IN the present case the respondent no. 1 (plaintiff) in his suit had claimed himself to be the lawfully Regional Secretary of the Rashtriya Colliery Mazdoor sangh whereas in the counter claim the respondent no. 3 had claimed himself to be the Regional Secretary of the Rashtriya Colliery Mazdoor Sangh. In the counter claim the relief of injunction against the plaintiffs as well as the defendant no. 1 to 7 restraining them from interfering in his working as a Regional Secretary has been sought. He has also claimed right to function as lawfully elected Regional secretary of Rashtriya Colliery Mazdoor Sangh. A perusal of the counter claim indicates that relief which has been claimed by the respondent no. 3 in the counter claim is not only against the co-defendant but it is also against the plaintiff in the suit. ( 11. ) LEARNED appearing counsel for the applicants is not right in his submission that once the suit of the plaintiffs is dismissed then there is no plaintiff in picture and the counter claim can not continue. Such a submission is contrary to the provision of Order 8 Rule 6 -D of the CPC itself which permits continuance of the counter claim, even if the suit of the plaintiff is stayed, discontinued or dismissed. In the light of Rule 6- D the counter claim filed by the respondent no. 3 can not be dismissed solely for the reason that the suit filed by the respondent no. 1 - plaintiff has been dismissed. ( 12. ) LEARNED counsel appearing for the applicants has pressed reliance upon the judgments reported in the matter of Udhavdas Tyagi, (supra), Mukund Lal (supra) and Rohit Singh (supra ). All these judgments on the point that the counter claim can not be filed claiming a relief solely against co-defendant. But that is not the position in the present case. In the present case the counter claim is both against the plaintiff in the suit and the co-defendant. The Supreme Court in the matter of Rohit Singh (supra) has observed that the counter claim has necessarily to directed against the plaintiffs in the suit and alongwith it, it may also claim a relief against the co-defendant in the suit. In the present case the counter claim is both against the plaintiff in the suit and the co-defendant. The Supreme Court in the matter of Rohit Singh (supra) has observed that the counter claim has necessarily to directed against the plaintiffs in the suit and alongwith it, it may also claim a relief against the co-defendant in the suit. Thus, filing of counter claim and claiming of relief against the co-defendant is not barred under the CPC. ( 13. ) IT is also worth noting that applicants had filed application under Order 7 rule 11 (d) of CPC but from the statement made in the counter claim, the claim does not appear to be barred by any law. ( 14. ) THE trial court in the impugned order has rightly noted that the counter claim was both against the plaintiff as well as defendant no. 1 to 7 and the status of the respondent no. 3 who had filed counter claim is that of a plaintiff. It is settled proposition of law that the counter claim can continue independently. ( 15. ) THUS, I find no error in the order of the trial court. The trial court has neither committed jurisdictional error nor has acted illegally or with material irregularity in exercise of its jurisdiction. Therefore, there is no reason to interfere in the order of the trial court in the present revision filed under Section 115 of CPC. ( 16. ) THE revision petition is accordingly dismissed. ( 17. ) NO order as to the costs.-Revision dismissed.