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2013 DIGILAW 218 (ORI)

SHRIMATI BASANTI JENA v. APANI BEWA

2013-07-17

S.K.MISHRA

body2013
JUDGMENT : S.K. Mishra, J. - Heard Learned Counsel for the parties. A Composite order passed on 08.04.2013 in Civil Suit No. 110 of 2009 of the Court of 1st Addl. Civil Judge (Senior Division); Bhubaneswar is the subject matter of challenge in this Writ Petition. The petition filed by the Defendant Nos. 7 & 8 for the acceptance of written statement was allowed. A petition filed to reject the counter claim submitted by the Defendant Nos. 7 & 8 & for exclusion of counter claim submitted by the Defendants was rejected. A petition filed by Defendant No. 2 for rejection of written statement submitted by the Defendant Nos. 7 & 8 was also rejected. Petition filed by the Plaintiff to reject the written statement of the Defendant Nos. 7 & 8 was also rejected. 2. The present Petitioner, being the Plaintiff of Civil Suit No. 110 of 2009 has filed an application for setting aside the aforesaid order. The suit has been filed for declaration of right, title & confirmation of possession & in the alternative for recovery of possession of the suit land from the Defendants. The Defendant Nos. 7 & 8 appeared in the case & on 28.08.2009 filed their written statement along with a petition for acceptance of the same. It is revealed from the records that the Learned 1st Addl. Civil Judge (Senior Division) on 30.09.2009 directed that the Defendant Nos. 7 & 8 should serve copy of the written statement & the petition for acceptance thereof on the other Defendants & the Plaintiff & posted the records to 30.11.2009. It is further borne out from the records that on 11.01.2010 the Defendant Nos. 7 & 8 submitted their counter claim. The said counter claim was accepted on 22.03.2010. However, no order by then was passed on the petition dated 28.08.2009 filed by the Defendant Nos. 7 & 8 to accept the written statement. But Fact remains that by the date of filing of the counter claim, i.e. 11.01.2010, the Defendant Nos. 7 & 8 had already filed their written statement. However, the Court has not passed any order on the petition to accept the same. Taking Into Consideration the reported case of Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, the Learned 1st Addl. 7 & 8 had already filed their written statement. However, the Court has not passed any order on the petition to accept the same. Taking Into Consideration the reported case of Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, the Learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar accepted the written statement filed by the Petitioner & rejected the petition for exclusion of the counter claim. 3. Assailing the orders passed by the Learned 1st Addl. Civil Judge (senior Division), the Learned Counsel for the Petitioner first submits that, in the absence of a written statement, the counter claim cannot be accepted. In this connection, he relies on the reported case of Ramesh Chand Ardawatiya Vs. Anil Panjwani wherein the Supreme Court has laid down the scheme of Order 8 as amended by the Act 104 of 1976 & opined that there are three modes of pleading or setting up counter claim In a civil suit. The Hon'ble Supreme Court, further, held that firstly the written statement filed under Rule 1 may itself contain a counter claim which in the light of Rule 1 read with Rule 6-A of the Code would be a counter claim against the claim of the Plaintiff preferred in exercise of the legal right conferred by Rule 6-A. Secondly, the Hon'ble Supreme Court held that counter claim may be preferred by way of amendment incorporating the counter claim subject to the leave of the Court in a written statement already filed. Third, the Hon'ble Supreme Court held that the counter claim may be filed by the way of subsequent pleadings under Rule 9. The Supreme Court has further categorically held that in the latter two cases the counter claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order 6 Rule 17 of the code if sought to be introduced by the way of amendment or subject to exercise of discretion conferred on the Court or under Order 8 Rule 9 of the Code if sought to be placed on record by way of subsequent pleading. There is no dispute regarding the settled principles of law as laid down by the Supreme Court. The contention of the Learned Counsel for the Petitioner as the petition filed by the Defendant Nos. There is no dispute regarding the settled principles of law as laid down by the Supreme Court. The contention of the Learned Counsel for the Petitioner as the petition filed by the Defendant Nos. 7 & 8 on 28.08.2009 for acceptance of their written statement had not been allowed, the written statement cannot be said to be on record. This is a technical argument. The Defendant Nos. 7 & 8 had filed their written statement but it appears due to inadvertence the Learned 1st Addl. Civil Judge (Senior Division) has not passed any order thereon. That does not mean that the Defendant Nos. 7 & 8 shall be precluded from filing a counter claim with leave of Court. 4. That the case, this Court is of the opinion that even though no formal order has been passed by the Learned 1st Addl. Civil Judge (Senior Division) & later on an order has been passed on 08.04.2013 accepting the written statement, the technical clog which has been removed later, will not affect the substantial right of a party or the powers of the Court to accept the counter claim submitted by the Defendant Nos. 7 & 8, Secondly, the Learned Counsel for the Petitioner submits that the written statement has been submitted on 28.08,2009 & the counter claim indicates that the cause of action for the said claim arose on 5.12.2009. However, a careful reading of paragraph-18 of the counter claim reveals that the cause of action to file the counter claim for the Defendant Nos. 7 & 8 arose for the first time when they served with the notice in the suit & they took part in the proceeding by way of filing show cause in the interim application preferred by the Petitioner under Order 39 Rules 1 & 2 read with Section 151 of the Code & later on when this Court passed an order in F.A.O. No. 213 of 2009, on 23.10.2009 to maintain status quo. However, it is pleaded that the cause of action arose lastly on 05.12.2009 when the Plaintiff & her supporters attempted to trespass to the schedule-2 property of the counter claim & raised a temporary shed over schedule No. 2 land. Thus, it appears that the part of cause of action arose before filing written statement. 5. However, it is pleaded that the cause of action arose lastly on 05.12.2009 when the Plaintiff & her supporters attempted to trespass to the schedule-2 property of the counter claim & raised a temporary shed over schedule No. 2 land. Thus, it appears that the part of cause of action arose before filing written statement. 5. Order 8, Rule 6A of the Code provides that a Defendant in a suit may, in addition to his right of pleadings 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 defense or before the time limited for delivering his defense has expired, whether such counter claim is in the nature of claim for damage or not, provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. 6. The case of the Defendant Nos. 7 & 8 is that the filing of the suit gave rise to the cause of action for filing the counter claim. The counter claim did not arise only on 05.12.2009. The series of events which led them to file the counter claim in the suit are the receiving notice in the suit, passing of an order of status quo in the interim application & the overt action of the Plaintiff on 05.12.2009. Such bundle of facts gave rise to the cause of action. Thus, in this connection, the citations relied upon by Learned Counsel for the Petitioners do not come to help as the cause of action arose partly prior to filing of the written statement by the Defendants. Therefore, the second contention is also not acceptable. 7. The Learned Counsel for the Petitioner further submits that an application to seeking leave of the Court for filing of the counter claim should not have been accepted. The Learned 1st Addl. Civil Judge (Senior Division) considering this point has come to the conclusion that interest of justice warrants for such leave to accept the counter claim should be granted. The Learned 1st Addl. Civil Judge (Senior Division) has such jurisdiction to entertain the said application & to allow the same. The Learned 1st Addl. Civil Judge (Senior Division) considering this point has come to the conclusion that interest of justice warrants for such leave to accept the counter claim should be granted. The Learned 1st Addl. Civil Judge (Senior Division) has such jurisdiction to entertain the said application & to allow the same. There is no allegation that he exceeded his jurisdiction or exercised his jurisdiction with material irregularities. Hence, there is no necessity of interfering with the orders passed by the 1st Addl. Civil Judge (Senior Division). That being the case, the Writ Petition is devoid of merit & the same is, therefore, dismissed.