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2017 DIGILAW 293 (ORI)

Purna Chandra Biswal v. Kiran Kumari Brahma

2017-03-17

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the order dated 22.9.2014 passed by the learned Civil Judge (Sr.Division), Keonjhar in Civil Suit No.100 of 2012. By the said order, the learned trial court excluded the counter claim of the defendant. 2. The opposite party as plaintiff instituted the suit for permanent injunction impleading the petitioner as defendant. Pursuant to issuance of summons, the defendant entered appearance and filed a written statement and counter claim seeking declaration of right, title, interest over ‘A’ schedule property and recovery of possession of ‘B’ schedule property by evicting the plaintiff, permanent injunction and demarcation. 3. While the matter stood thus, the plaintiff filed an application under Order 8 Rule 6 (C) C.P.C. to exclude the counter claim. It is stated that the suit has been instituted in respect of Plot nos. 85, 89 and 90 appertaining to Khata no.17 of mouza. Jagannathpur, Keonjhar. She has constructed her dwelling house over the same, but then counter claim has been filed in respect of Plot no.38/421 appertaining to Khata no.102/768 of mouza-Jagannathpur, Keonjhar The plaintiff objected the same. The learned trial court came to hold that the defendant has filed a counter claim in respect of the land, which is not the subject matter of the suit. Held so, the learned trial allowed the objection filed by the plaintiff and excluded the counter claim from the written statement and granted liberty to the defendant to institute a fresh suit. 4. Heard Mr.G.M.Rath, learned Advocate for the petitioner and Mr.D.P.Mohanty, learned Advocate for the opposite party. 5. Mr.Rath, learned Advocate the petitioner submitted that the plaintiff and defendant are adjacent land owners. There is long standing dispute between them. The counter claim has been admitted by the court. In view of the same, the learned trial court was not justified in excluding the same. 6. Per contra, Mr.Mohanty, learned Advocate for the opposite party submitted that the petitioner filed a counter claim in respect of the property, which is not the suit schedule property. The learned trial court has rightly excluded the same. 7. The question does arise as to whether the claim in respect of the property, which is not the subject matter of the suit, can be the subject matter of counter claim? 8. The learned trial court has rightly excluded the same. 7. The question does arise as to whether the claim in respect of the property, which is not the subject matter of the suit, can be the subject matter of counter claim? 8. Order 8 Rule 6A (1) and 6C, which are hub of the issue, are quoted below:- “6A.(1) A defendant in a suit may in addition to his right of pleading a set-off under Rule6, set-up by way of counterclaim 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 defence of before the time limited for delivering his defence has expired whether such counterclaim is in the nature of a claim for damages or not; Provided that such counterclaim shall not exceed the pecuniary limits of jurisdiction of the Court. xxx xxx xxx 6C. Where a defendant sets up a counterclaim and the plaintiff contends that the claim they raised ought not to be disposed of by way of counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counterclaim may be excluded and the Court may, on the hearing of such application make such order as it thinks fit.” 9. The words “any right” appearing in Rule 6(A) (1) of Order 8 C.P.C. mean right over the suit land. The same must be in respect of cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. Thus the defendant cannot file a counter claim in respect of the property, which is not the subject of matter of suit. 10. Admittedly, the suit has been instituted in respect of Plot nos. 85, 89 and 90 appertaining to Khata no.17 of mouza-Jagannathpur, Keonjhar, whereas counter claim has been filed in respect of Plot no.38/421 appertaining to Khata no.102/768 of mouza-Jagannathpur, Keonjhar. The subject matter of the suit as well as counter claim is totally different. The counter claim has been filed in respect of a different cause of action, which has no bearing on the suit schedule land. 11. The subject matter of the suit as well as counter claim is totally different. The counter claim has been filed in respect of a different cause of action, which has no bearing on the suit schedule land. 11. The order passed by the learned trial court cannot be said to be perfunctory or illegal warranting interference of this Court under Article 227 of the Constitution of India. The petition is dismissed. No costs.