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2016 DIGILAW 185 (RAJ)

Vijay Kumar v. Kailash Chandra

2016-02-01

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 08.07.2015 passed by the trial court, whereby the application filed by the petitioner under Order 8, Rule 6C read with Section 151 CPC has been rejected. 2. The suit seeking dissolution of partnership, accounts and partition of the property of the firm was filed by Kailash Chandra. 3. The petitioner who is defendant No. 1, filed written statement and denied that the property which was made subject-matter of the suit, was not property of the firm and was individual property of the Rohitash who was adoptive father of the petitioner. The defendant Nos. 6 to 12 filed written statements and also filed counter claim and sought a specific share in the property of the firm, while defendant No.6 sought 5% share in the property, defendant No.7 sought 17.5% share and defendant Nos. 8 to 11 also sought 17.5% share in the firm. Reply to the counter claim was filed by plaintiff and the claim made by defendant Nos. 6 to 11 was admitted. 4. Where after the present application was filed by the petitioner, inter alia, alleging that the plaintiff and defendant Nos. 6 to 12 are in collusion and they have joined hands for the purpose of usurping the petitioner's property. The claim made by defendant Nos. 6 to 12 cannot be adjudicated in the present proceedings and the same would embarrass/delay the trial and, therefore, the counter claim filed by respondent Nos. 6 to 12 be excluded. 5. The application was opposed by the plaintiff and other defendants. 6. After hearing the parties, the trial court came to the conclusion that the relief claimed in the counter claim is not such which is likely to embarrass or delay the trial and for which the fresh suit is required to be filed and consequently, dismissed the application. 7. 5. The application was opposed by the plaintiff and other defendants. 6. After hearing the parties, the trial court came to the conclusion that the relief claimed in the counter claim is not such which is likely to embarrass or delay the trial and for which the fresh suit is required to be filed and consequently, dismissed the application. 7. It is submitted by learned counsel for the petitioner that looking to the conduct of the other defendants in filing counter claim and plaintiff admitting the counter claim and the fact that the only person affected on account of such collusion is the petitioner, whose property is sought to be usurped by the respondents, and, therefore, the said issue which was sought to be raised by the other defendants by way of counter claim, could only be raised by way of different suit and the same should be directed to be excluded. 8. It is further submitted that the petitioner has not got any opportunity to respond to the claim made by the respondents in the counter claim which essentially is directed against the petitioner and, therefore, also the order impugned deserves to be quashed and set aside. Another submission was made that irrespective of the title of the application, under Order 6, Rule 16 CPC the statements made in the written statement regarding counter claim should have been directed to be struck off. 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 10. At the direction of the Court, the petitioner has produced the issues framed by the trial court. 11. A bare look at the provisions of Order 8, Rule 6C reveals that the prayer for exclusion of counter claim, can be made by the plaintiff before the issues are settled in relation to the counter claim. 12. Admittedly, petitioner is not the plaintiff and, therefore, the application at his instance was rightly not countenanced by the trial court. 13. So far as the prayer made by learned counsel for the petitioner regarding treating the application under Order 6, Rule 16 CPC is concerned, the suit in question pertains to the dissolution/accounts and partition of the property of the firm. 13. So far as the prayer made by learned counsel for the petitioner regarding treating the application under Order 6, Rule 16 CPC is concerned, the suit in question pertains to the dissolution/accounts and partition of the property of the firm. The respondents who all are claiming to be partners in the firm and also claiming a specific share in the said firm, have raised the counter claim. It is true that generally a counter claim against the co-defendant is not maintainable, however, there are exceptions to the said principles wherein in a case of partition and/or dissolution of a partnership firm, counter claim having the effect of relief against the co-defendant also is maintainable. Therefore, the plea raised by the petitioner that the defendants who had filed the counter claim should have filed a fresh suit for the purpose for which the counter claim was filed, does not appear to be a sound proposition of law and as such it cannot be said that the averments made in the counter claims were liable to be struck off under Order 6, Rule 16 CPC. 14. The issues which have been produced for the perusal of this Court, clearly indicates that the trial court has framed issue Nos. 7, 8 and 9 regarding the share claimed by defendant Nos. 6, 7 and 8 to 11. The very fact that issues have been framed by the trial court, despite the admission of the plaintiff qua the counter claims made by respondent Nos. 6 to 11 necessarily shows that the said defendants, irrespective of the fact that the claim has been accepted by the plaintiff, would have to prove the same independent of such admission by the plaintiff and at that stage the petitioner would have opportunity to contest the same. 15. So far as the submission that petitioner should have been granted opportunity to file reply to the counter claim, a bare look at the record indicates that instead of seeking the said relief from the trial court, the petitioner sought exclusion of the counter claim and, therefore, in absence of any prayer, the petitioner cannot now raise the grievance that he should have been granted permission to file reply to the counter claim. 16. Still if the petitioner feels advised to make such a prayer to the trial court, the trial court shall decide the same on its own merit. 17. 16. Still if the petitioner feels advised to make such a prayer to the trial court, the trial court shall decide the same on its own merit. 17. So far as the present petition is concerned, in view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.