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2010 DIGILAW 1000 (MP)

Murarilal v. Chhotelal

2010-10-01

BRIJ KISHORE DUBE, S.K.GANGELE

body2010
ORDER 1. The petitioner/defendants have filed this petition against the order dated 16.7.2010, by which the counter claim submitted by Murarilal, legal representative of defendants No.1-Rambabu, has been rejected. 2. The plaintiffs filed a suit for declaration and permanent injunction. The defendant No.1- Rambabu died on 18.5.2009. Hie legal representatives have been brought on record. Thereafter Murarilal filed a counter claim. In the aforesaid counter claim, he pleaded that the partition dated 17.5.2007 be declared null and void and decree of permanent injunction be also passed in his favour and the plaintiffs shall not interfere in possession of his land area 1.15 hectare of Survey No. 28. That counter claim has been rejected by the trial Court on the ground that the evidence of the plaintiffs in the case was already over and the witness of the defendants namely, Murarilal Sharma has also completed his evidence. In such circumstances in view of the provisions of Order VIII Rule 6-A of the CPC, the counter claim filed by the defendant is not maintainable. The provisions of Order VIII, Rule 6A in regard to counter claim by the defendant is as under "6A. 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 by way 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." 3. From the aforesaid provisions, it is clear that the defendant can file a counter claim either before or after the filing of the suit but before the defendant has delivered his defence or before the time limitation for delivering hi-s defence has expired. In the present case one witness of the defendants has already been examined. The evidence of the plaintiffs is already over. In such circumstances, in veiw of the provisions of Order VIII, 6A the trial Court has rightly rejected the counter-claim of the defendant-Murarilal. In the present case one witness of the defendants has already been examined. The evidence of the plaintiffs is already over. In such circumstances, in veiw of the provisions of Order VIII, 6A the trial Court has rightly rejected the counter-claim of the defendant-Murarilal. However, the defendant-Murarilal is free to file independent suit and the trial Court may return the counter-claim of the defendant. 4. With the aforesaid observation, the writ petition is disposed of No order as to costs.