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2013 DIGILAW 2293 (ALL)

SHASHI MISHRA v. NAVIN KUMAR PANDEY

2013-09-13

SANJAY MISRA

body2013
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Hare Krishna Mishra learned counsel for the revisionists and Sri Anirudh Sharma holding brief of Sri H.N. Sharma for the respondents. 2. This revision under Section 115 CPC has been directed against the order dated 7.2.2012 passed by the Additional Civil Judge (S.D.) Room No. 11, Allahabad in Suit No. 1667 of 2008 (Smt. Shashi Mishra v. Navin Kumar Pandey and another) whereby the Application 98-ga filed by the plaintiff revisionist under Order VIII Rule 6-A CPC has been rejected. 3. Learned counsel for the revisionists has assailed the impugned order mainly for the reason that the valuation of the suit filed by the revisionist is Rs. 25 lakhs whereas the valuation of the counter-claim filed by the respondent is Rs. 31,200/- and therefore after the same are decided the appeal/revision filed by either of the parties shall be at different forums and hence likely to have contradictory judgments. 4. Learned counsel for the respondents has disputed the submission and has stated that the application paper No. 98-C under Order VIII Rule 6 CPC filed by the revisionist has been rightly rejected in view of the specific provision of Order VIII Rule 6-C CPC. 5. Having considered the submission of learned counsel for the parties and perused the record the facts are that the Suit No. 1667 of 2008 was filed whereupon the defendants filed their counter-claim on 6.8.2010. Issues in the suit were framed on 7.12.2010 and issue No. 9 relating to counter-claim was decided on 6.1.2011. The application under Order VIII Rule 6-A CPC was filed by the plaintiff on 17.11.2011. Clearly the said un-disputed facts indicate that the Application 98-C for separating the counter-claim to be decided as a separate suit was filed after issues had been framed and issue No. 9 relating to the counter-claim had been decided on 6.1.2011. 6. The application under Order VIII Rule 6-A CPC was filed by the plaintiff on 17.11.2011. Clearly the said un-disputed facts indicate that the Application 98-C for separating the counter-claim to be decided as a separate suit was filed after issues had been framed and issue No. 9 relating to the counter-claim had been decided on 6.1.2011. 6. The provisions of Order VIII Rule 6-C are quoted here under : “Exclusion of counter-claim.—Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.” 7. From the aforesaid provision it is quite clear that when the defendant sets up a counter-claim and the plaintiff contends that it should be decided as an independent suit the plaintiff can at any time before issues are settled in relating to the counter-claim apply to the Court to exclude the counter-claim. 8. In the facts and circumstances of the present case clearly the issues were settled on 7.12.2010. Issue No. 9 which was in relation to the counter-claim was decided on 6.1.2011 and the application under Order VIII Rule 6-A CPC was filed by the revisionist on 17.11.2011 which was much after the issue No. 9 relating to the counter-claim had been decided by the Court. Therefore in view of the aforesaid provision the plaintiff could not claim that the counter-claim of the defendant ought to be decided in an independent suit and the plaintiffs suit be continued without the counter-claim. 9. By the impugned order the said application paper No. 98-C made by the plaintiff revisionists has been rejected for the aforesaid reasons. There is no error in the impugned order. The revision has no merit. It is accordingly dismissed. No order is passed as to costs.