Mazid Beg (dead) thr. Arkey Investment Pvt. Ltd. , Bhopal v. Subhashini Pandey, W/o. Late Col. Umeshchand Pandey
2023-08-28
DWARKA DHISH BANSAL
body2023
DigiLaw.ai
ORDER : Dwarka Dhish Bansal, J. There is common question involved in these two civil revisions, therefore, both are being decided by this common order. 2. These civil revisions have been preferred by one of the plaintiffs/ applicant challenging the identical orders dated 30-6-2021 passed by 5th Additional District Judge, Bhopal in RCS No. 527-A/2008 and 460-A/2008, whereby plaintiffs’ applications under Order 7, Rule 11, Civil Procedure Code have been dismissed. 3. Learned counsel for the applicant/plaintiff submits that originally the suit was filed by plaintiff- Mazid Beg, in which written statement(s) was/were filed by the defendants and one of the defendants namely Omwati Goyal filed counter-claim also. During pendency of suit, plaintiff-Mazid Beg died, therefore, his legal representatives were substituted and under order of High Court, applicant-Arkey Investment Pvt. Ltd. was also impleaded as one of the plaintiffs in the plaint. Prior to substitution of Arkey Investment Pvt. Ltd., the defendant(s) filed his/their written statement(s) and defendant Omwati Goyal filed separate written statement as well as counter-claim and nobody else has filed the counter-claim. 4. Learned counsel for the applicant/plaintiff submits that learned trial Court is trying the suit and counter-claim jointly. It is also one of the fact on record that prior to death of original plaintiff-Mazid Beg, he had filed written statement to the counter-claim. By placing reliance on the decision of Supreme Court in the case of Jag Mohan Chawla and another vs. Dera Radha Swami Satsang and others, AIR 1996 SC 2222 (pr.5), learned counsel for the plaintiff/applicant submits that because same procedure is applicable to the counter-claim, therefore, the defendant-Omwati Goyal also should have filed application for substitution of original plaintiff’s legal representatives as well as for impleadment of Arkey Investment Pvt. Ltd. in the counter-claim and in absence thereof the prayer made on behalf of the applicant/plaintiff for dismissal of the counter claim as abated, has wrongly been turned down by learned Court below in both the cases and submits that because the defendant did not take steps to substitute the legal representatives of plaintiff-Mazid Beg so also to implead the Arkey Investment Pvt. Ltd. in the counter-claim, therefore, the same has abated and deserves to be dismissed. 5. Learned Senior Counsel with Ms.
5. Learned Senior Counsel with Ms. Sanjana Sahni, Advocate by placing reliance on the decision of Supreme Court in the case of Organic Insulations vs. Indian Rayon Corporation Ltd., (2003) 9 SCC 187 , submits that after substitution of legal representatives in the plaint, the substitution in the counter-claim is not required to be done and the counter-claim would not abate as no prejudice would be caused to the LRs. of the deceased who would have full opportunity to present their defence because a suit and counter-claim are to be tried by the same Court in the same proceedings. With these contentions, he prays for dismissal of the civil revisions. 6. Heard learned counsel for the parties and perused the record. 7. Undisputedly, after death of original plaintiff-Mazid Beg, his legal representatives were substituted in the plaint and under order of this Court, the name of applicant-Arkey Investment Pvt. Ltd. was also added as one of the plaintiffs. By way of application under Order 7, Rule 11, Civil Procedure Code, the plaintiffs have raised objection to the effect that because of non-substitution of legal representatives of plaintiff-Mazid Beg and non-impleadment of Arkey Investment Pvt. Ltd. in the counter-claim, the same has abated. 8. In the case of Organic Insulations vs. Indian Rayon Corporation Ltd., (2003) 9 SCC 187 (supra), Hon’ble Supreme Court has held as under : “3. Coming to the provisions of Order 8 Rule 6-A, although sub-rule (4) says that the counter-claim will be treated as a plaint, under sub-rule (2), such counter-claim has the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original suit and on the counter-claim. As the substitution has been made by the plaintiff in the suit, the legal heirs of the plaintiff will have full opportunity to defend the counter-claim as both the suit and the counter-claim will be tried in the same proceeding and therefore, no prejudice would be caused to the legal heirs of the plaintiff in the counter-claim. We, therefore, find that the contention of the learned counsel for the appellant has no force.” 9.
We, therefore, find that the contention of the learned counsel for the appellant has no force.” 9. In view of the aforesaid decision in the case of Organic Insulations (supra) and further in view of the provisions contained under Order 8, Rule 6-A to G of Civil Procedure Code, in my considered opinion, after making substitution/addition in the plaint, there is no need to substitute/add the legal representatives of plaintiff or defendant or additionally added parties, in the counter-claim also. 10. In addition to the aforesaid it is pertinent to mention here that Rule 6-A of Civil Procedure Code does not say as to who shall be parties to the counter claim, however it can be filed only against the plaintiff(s) and against no other person. Order VII, Rule 1, Civil Procedure Code prescribes about particulars to be contained in plaint but order VIII does not prescribe containing of such particulars in the written statement or counter-claim also. Meaning thereby the particulars about plaintiff(s) and defendant(s) remain the same in both cases as shown in the plaint and in my considered opinion, parties to the suit are treated the parties to the counter-claim also, therefore, there arises no question of substitution of LRs/addition of new party in the counter claim also. 11. In the case of Gastech Process Engineering (India) Pvt. Ltd. vs. Saipem, 2009 (159) DLT 756 and Hari Singh Kapur vs. Ajit Kumar Kapur and Ors., 2008 (4) Civil Court Cases 812 (P and H), Delhi and Punjab and Haryana High Courts have held that counter-claim cannot be filed against the persons who are not parties to the suit i.e. against the stranger to the suit. It is also well settled that without written statement, there cannot be a counter-claim. 12. In the present case the particulars of parties (i.e. plaintiffs and defendants) have been given in the plaint only and rightly while filing counter claim, the same has been adopted by the defendant/counterclaimant also, therefore, in such condition, even the question of substitution in the counter-claim does not arise. 13. As such, it can be concluded that the parties to the suit and counterclaim both, remain the same, however it is the choice and requirement of the one or more defendants to file counter-claim or not. 14. Resultantly, declining interference in the impugned orders, these civil revisions fail and are hereby dismissed. 15.
13. As such, it can be concluded that the parties to the suit and counterclaim both, remain the same, however it is the choice and requirement of the one or more defendants to file counter-claim or not. 14. Resultantly, declining interference in the impugned orders, these civil revisions fail and are hereby dismissed. 15. Interim application(s), if any, shall stand dismissed.