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2013 DIGILAW 1141 (PAT)

Manju Devi v. Naresh Kumar Gupta

2013-09-19

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER 1. The petitioners are aggrieved by an order dated 31.08.2010 passed in Title Suit No. 560 of 2005 whereby learned Sub-Judge-I, Muzaffarpur, has rejected a counter claim made by the petitioners / defendants in their written statement. The petitioners have also sought for setting aside a subsequent order dated 18.08.2011 passed in the same suit whereby an application for reviewing the earlier order dated 31.08.2010 has been rejected. 2. This is not in dispute that the plaintiffs/ respondents 1st set have filed the said Title Suit No. 560 of 2005 seeking a decree for confirmation of their possession with respect to suit land and also for a declaration that a deed of Ladavi dated 16.05.1996, said to have been executed by Bhola Sah, was forged and fabricated. The plaintiffs further sought for a declaration that Nageshwar Sah and three brothers had no right to execute sale deed dated 02.04.1996 and 31.07.1996. 3. The case of the petitioners, who were defendants before the Court below, is that they filed their counter claim alongwith their written statement seeking inter alia, a declaration that they had absolute title and exclusive possession over the suit property. On the basis of pleadings in the plaint and the written statement, issues were framed. The issues so framed have been brought on record by way of Annexure-5 to the supplementary affidavit filed on behalf of the petitioners today. The issues so framed included the following issues:- “4. Whether the deed of Ladavi dt. 16.05.1996 is forged, fabricated and never bears the signature and L.T.I. of Bhola Sah? 5. Whether the sale deeds dt. 2.4.96 and 31.7.96 are forged, fabricated, collusive, inoperative and without consideration? 6. Whether the defendant 1st party acquired any right, title, interest and possession on the basis of sale deeds dt. 2.04.96 and 31.07.96.” 4. It appears that for one reason or the other, no report could be submitted by the Sheristedar of the court on the counter claim filed by the petitioners. The trial of the suit commenced, evidence by the parties were led and after completion of evidence, in course of argument the petitioners took a plea that they had filed a counter claim which required to be admitted. The petitioners filed an application before the Court below on 04.07.2006, stating these facts. The trial of the suit commenced, evidence by the parties were led and after completion of evidence, in course of argument the petitioners took a plea that they had filed a counter claim which required to be admitted. The petitioners filed an application before the Court below on 04.07.2006, stating these facts. It further appears that on a subsequent report having been submitted by Sheristedar, the petitioners deposited the required Court fee with respect to the counter claim. 5. The plea made on behalf of the petitioners / defendants for acceptance of the counter claim was opposed before the Court by the plaintiffs / defendants by way of rejoinder. 6. By the impugned order dated 31.08.2010, the Court below rejected the petition on the ground that the application was belated and, if at that stage, the counter claim was accepted, the plaintiff would be seriously prejudiced in defending the counter claim. It further appears that the petitioners thereafter, filed a petition dated 06.12.2010 for reviewing the order dated 31.08.2010. The said review petition has also been dismissed by the Court below by an order dated 06.12.2010 and in such circumstance, this application under Article 227 of the Constitution of India has been preferred. 7. Mr. T.N. Matin, learned senior counsel appearing on behalf of the petitioners, contends that non-acceptance of the counter claim filed by the petitioners / defendants will seriously prejudice their case and it would unnecessarily lead to multiplicity of litigation, inasmuch as in course of trial the parties have already adduced evidence and so far these petitioners are concerned, they are not required any more, to adduce any further evidence. He further submits that it was solely on account of the laches on the part of the office of the Court below that it failed to submit the report on the counter claim and for such laches the petitioners’ case should not be prejudiced. He submits that though on the basis of pleadings in the written statement, which contains counter claim also, issues were framed on the question of the petitioners’ title over the suit property but the Court below, after having refused to accept the counter claim by specific order may not grant decree in favour of the petitioners, even if, they are found entitled to, for such decree. He submits that in the facts and circumstances of this case, the Court below ought not to have rejected the counter claim. 8. Mr. Naresh Chandra Verma, learned counsel appearing on behalf of the Respondent No.1 / Plaintiff No. 1, contends that the application for accepting the counter claim at belated stage was filed by the petitioners / defendants only for the purpose of delaying disposal of the suit. He submits that if the counter claim is accepted at such belated stage, it would unnecessarily create complications in disposal of the suit. He contends that petitioners’ case would not be prejudiced even if the counter claim is not accepted as the issue as regards his title over the suit property has already been framed by the Court below. He has gone to the extent of making statement that the plaintiff No. 1 would not be raising any objection, if the issue relating to title of the petitioners over the suit property was adjudicated upon by the Court below. 9. He has further submitted that once the counter claim is accepted by the Court below, the Respondents / Plaintiffs would be under the obligation to reply to the counter claim treating the same to be a plaint and the procedure thereafter, will follow which will cause unnecessarily delay in disposal of the suit. 10. Be that as it may, this is not in dispute that a counter claim was filed alongwith the written statement by the petitioners / defendants. Such counter claim, in usual course would have been accepted had the report of the Sheristedar been submitted in time. 11. Filing of the counter claim is a valuable statutory right of the defendant which could not have been taken away on the basis that the plea for acceptance of the same was taken at a belated stage, particularly when the delay was on the part of the Sheristedar to file his report on counter claim. 12. The submission made on behalf of the respondents No. 1/plaintiff No. 1 that the petitioners can get relief if issues framed by the Court below as regards their title over the suit property are decided in their favour and, therefore, the impugned order needs no interference, cannot be accepted. The petitioners have a right to pursue their counter claim in accordance with law, irrespective of consequences. 13. The petitioners have a right to pursue their counter claim in accordance with law, irrespective of consequences. 13. In view of the above, I set aside the impugned orders dated 31.8.2010 passed in Title Suit No. 560 of 2005 as well as the order dated 18.08.2011 passed in the same suit by learned Sub-judge-I, Muzaffarpur. 14. I direct the Court below to accept the counter claim and proceed further. This will however, be subject to payment of a cost of rupees two thousand to be deposited in the Court below for the purpose of payment to the plaintiff No. 1. 15. This application is accordingly allowed, subject to the conditions aforesaid.