CHINTA RAM Vs. DEWANTIN BAI

JUDGEMENT

(1.) The petitioner has challenged the order dtd. 24/9/2022 passed in Civil Suit Case No.27/A/2010 passed by Civil Judge - Class - II, Rajim, District - Gariyaband, C.G. in parties name "Dewantin Bai and another Vs. Chinta Ram", whereby the application under Order 6 Rule 17 filed by the respondent/defendant has been rejected.

(2.) Learned counsel for the petitioner/defendant would submits that respondent No.1 and 2/plaintiff have filed suit for declaration and permanent injunction for possession of constructed suit house situated at Khasra No.661, 662 measuring area 0.06 and 0.07 hectares. Initially the trial Court dismissed the Civil Suit and passed the judgment and decree in favour of the petitioner dtd. 29/6/2012. Aggrieved by the judgment and decree respondent/plaintiff filed First Appeal which was allowed vide judgment and decree dtd. 12/2/2014, against which the petitioner has filed a Second Appeal No.187/2014. In the said case vide judgment dtd. 23/3/2022, remanded the matter back to the trial Court by observing that the application filed before the First Appellate Court under Order 41 Rule 27 of the CPC along with documents shall also be sent to the trial Court for examination of the correctness and genuineness of the documents, which have been taken on record by the First Appellate Court while allowing the application under Order 41 Rule 27 of the CPC giving sufficient opportunity to both the parties and defendant is also at liberty to file additional documents in support of his contentions. He would further submits that the learned trial Court has allowed the application under Order-8 Rule 1(A) CPC for filing documents in rebuttal, but by the impugned order dismissed the application filed under Order 6 Rule 17 of the CPC. He would next submits that pleading of the adverse possession has already been made in the written statement as the counter claim was not preferred or added in the written statement and the case has been remanded back for adjudicating afresh to avoid multiplicity of the litigation, the trial Court ought to be required to allow the application, hence, finally submits that by rejecting the application which is bad in law, so prays to intervene and set aside the impugned order.

(3.) Having heard learned counsel for the petitioner as also perused the documents annexed with the petition. It is now well settled law laid down by the Supreme Court in the matter of Ashok Kumar Vs. Surendra Agnihotri.(2020) 2 SCC 394 that the counter claim filed under Order 8 Rule 6 of CPC cannot be entertained in any case not after framing of the issue, in the said case, the question referred for clarification as to the interpretation of Order 8 Rule 6 - A of the CPC regarding the filing of counter claim by defendant and the following was answered in Para 17, 18 and 21 as follows :-