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Madhya Pradesh High Court · body

2016 DIGILAW 926 (MP)

Dindayal v. Churaman

2016-10-17

SHEEL NAGU

body2016
ORDER 1. The power of superintendence this Court is invoked under Article 227 of the Constitution of India for assailing the interlocutory order dated 14.8.2007 vide P-1 and 26.8.2007 vide P-2. 2. By order dated 14.8.2007, an application on behalf of the defendants seeking withdrawal of the counter claim on the ground of certain defect in the same with liberty to file a fresh counter claim has been rejected. Whereas, by the other order dated 25.8.2007 P-2, the fresh counter claim dated 14.3.2007 filed by the defendant has already been rejected for having been filed after filing of written statement. 3. Learned counsel for the petitioner is heard on the question of admission. 4. The factual matrix giving rise to the present case is that the suit in question was instituted on 10.8.2004 where after written statement was filed on 18.10.2004 which led to framing of issues on 24.12.2005. On 3.11.2006, the defendants filed a counter claim under Order 8 rule 6(A) CPC which was objected to by the plaintiff. Thereafter, when the suit was pending, at the stage of adducing of evidence on behalf of the plaintiff, an application under Order 23 rule 3 read with section 151 CPC Ex.P-5 was filed on 8.12.2006 by defendant praying for rejection of the counter claim filed on 3.11.2006 by assigning the reason that some procedural defect has crept in the same without detailing the said procedural defect. 5. The Court below rejected the said application under Order 23 rule 1 CPC for dual reasons, the first being that the application did not disclose the exact nature of the defect in the counter claim and that the counter claim is already on record. 6. As regards the second impugned order dated 25.8.2007 is concerned, the same prevented defendants from filing a fresh counter claim on the ground that the earlier counter claim is already on record whose withdrawal has been declined by the earlier order dated 14.8.2007. 7. Pertinently, the suit in question has been stayed by an interim order passed by this Court on 17.9.2007. 8. Learned counsel for the petitioner has placed reliance on the decision of apex Court in case of Smt. Shanti Ram Dewanjee v. Dinesh Chandra Day (dead) by LRs, reported in AIR 1997 SC 3985, and in the case of Mahendra Kumar v. State of M.P., reported in 1987 JLJ 593= (1987)3 SCC 265 . 9. 8. Learned counsel for the petitioner has placed reliance on the decision of apex Court in case of Smt. Shanti Ram Dewanjee v. Dinesh Chandra Day (dead) by LRs, reported in AIR 1997 SC 3985, and in the case of Mahendra Kumar v. State of M.P., reported in 1987 JLJ 593= (1987)3 SCC 265 . 9. It is seen that the apex Court in the case of Mahendra Kumar (supra), had laid down that the provisions of Order 8 rule 6 (A)(1) CPC do not prohibit filing of counter claim after filing of written statement. But merely prescribes that the cause of action in regard to which the counter claim is filed should have arisen prior to the filing of written statement. Similar is the view taken by the apex Court in the subsequent decision in the case of Smt. Shanti Ram Dewanjee (supra). 10. These decisions are of no avail to the petitioner since in the instant case, the issue of counter claim having been filed after or before the written statement was not involved. The issue involved herein pertains to the provisions of Order 23 rule 1(3) CPC where the defendant failed to satisfy the trial Court that any defect worth its name could scuttle the counter claim so as to mature right of defendant to withdraw the counter claim. 11. The reasons assigned by the trial Court do not appear to be unjustified as a bare perusal of the application P-5 under Order 23 rule 1 read with section 151 CPC (wrongly mentioned as Order 23 rule 3) reveals that the same hopelessly lacks in material particulars as regards the kind of defect which the defendant raises as cause for withdrawing the counter claim. Provisions of Order 23 rule 1 CPC clause (3)(a) empower the Court to pass an order of withdrawal of suit or abandonment of a part of his claim, on being satisfied that the suit would fail by reason of some formal defect. For convenience and ready reference, Order 23 rule 1 CPC clause 3(a) is reproduced below : 1. Provisions of Order 23 rule 1 CPC clause (3)(a) empower the Court to pass an order of withdrawal of suit or abandonment of a part of his claim, on being satisfied that the suit would fail by reason of some formal defect. For convenience and ready reference, Order 23 rule 1 CPC clause 3(a) is reproduced below : 1. Withdrawal of suit or abandonment of part of claim – (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : (2) xx (3) Where the Court is satisfied - a) that a suit must fail by reason of some formal defect, or b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim. 12. From the above, it is evident that unless the Court is satisfied that suit/counter claim suffers a fatal defect, the leave to withdraw the suit cannot be granted. Thus, it does not appear that the order of the Court below suffers from any material irregularity, illegality or perversity, much less want of jurisdiction. 13. Merely because, a different view is possible cannot be a ground for interference in the limited supervisory jurisdiction under Article 227 of the Constitution of India. The decision of apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010)8 SCC 329 ], is worthy of reference. 14. In view of the above, no reason arises for exercise of the limited power of superintendence under Article 227 of the Constitution of India. 15. Accordingly, the present petition fails and is hereby dismissed. Yogesh Singhal for petitioner; None for respondent.