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2018 DIGILAW 1663 (RAJ)

New Om Sai Stone v. Prakash Son Of Devilal

2018-08-07

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - Under challenge is the order dated 10th April, 2018 passed by Addl. District Judge No.1, Bundi allowing the respondent co-defendants (hereafter 'the co-defendants') Civil Misc. Appeal under Order 43, Rule 1 CPC while setting aside the order dated 7.4.2017 passed by Addl. Civil Judge No.2, Bundi in a trial dismissing the codefendants' application under Order 39, Rule 1 and 2 CPC filed with their counter claim against the petitioner defendant no.1 (hereafter 'D1') . 2. Mr. Kamlakar Sharma, Sr. Counsel appearing with Mr. M.S. Rajpurohit for D1 at the very outset submitted that order of injunction against D1 in the Civil Misc. Appeal at the co-defendant's instance has been passed by the appellate court oblivious of the fact the counter claim of the co-defendant to which the Misc. Appeal related was itself not maintainable on the plain language of Order 8, Rule 6A CPC as also held by the Apex Court in the case of Rohit Singh and others vs. State of Bihar & Ors. {(2006) 12 Supreme Court Cases 734} as under:- "Normally, a counterclaim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counterclaim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But a counterclaim directed solely against the co-defendants cannot be maintained. By filing a counterclaim the litigation cannot be converted into some sort of an interpleader suit. Here, Defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against Defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counterclaim, in our view, should not have been entertained by the trial court." 3. Mr. Such a counterclaim, in our view, should not have been entertained by the trial court." 3. Mr. Kamlakar Sharma submitted that besides the above, for reason of which the codefendant's counter claim and application for interim injunction therewith against D1 was not maintainable, the order of injunction dated 10.4.2018 passed by the appellate court in the co-defendant's Civil Misc. Appeal was premised on the injunction in the Civil Misc. Appeal at the instance of the respondent - plaintiff (hereafter 'plaintiff'). That order put to challenge in S.B. Civil Writ Petition No. 10372/2018 and has been set-aside today. The non application of mind by the appellate court in passing the order of injunction in the codefendant's Civil Misc. Appeal is evident also from the fact that the status of the codefendants in appeal before the court against D1 has been not adverted to in the body of the impugned judgment but only in a cursory manner in the operative portion. 4. Mr. Sanjay Sharma appearing for the plaintiffs cannot deny that in view of Order 8, Rule 6A CPC as also the judgment of the Apex Court in the case of Rohit Singh and others (supra), a counter claim at the instance of co-defendant, which the respondent defendant indeed was in the plaintiff's suit against D1 was not maintainable. And so was not an interlocutory application therein. 5. In view of the respective submissions, Order 8, Rule 6A CPC as also the law laid down by the Apex Court in the case of Rohit Singh and others (supra), it is starkly clear that a counter claim by a co-defendant against D1 was not maintainable. Proprio vigore an application for injunction therein by the co-defendant against D1 was also not maintainable. And obviously nor was the Civil Misc. Appeal against the rejection of the co-defendant's application under Order 39, Rule 1 and 2 CPC against D1. 6. Resultantly, the order of the appellate court passed on 10.4.2018 at the instance of co-defendant against D1 is liable to be quashed and set-aside. It is so. Accordingly the writ petition is allowed. 7. The trial court is directed to decide the underlying suit pending before it as far as possible within 12 months from the date of presentation of certified copy of this order.