BAI DAYAMBAI SULLEMANJI Vs. MAHOMEDALLI EBRAHIMJI ARSIWALA

JUDGEMENT

(1.) THIS suit was filed on January 20, 1939, for a declaration that the plaintiff is the owner and absolutely entitled to the immoveable property mentioned in the plaint, for a declaration that the defendant is not entitled to claim any charge on the property in respect of any moneys alleged to have been expended thereon, and for various other reliefs. A written statement and counter-claim was filed by the defendant on February 20, 1939. The defendant on coming to the counter-claim set out a further title similar to the title in a plaint making himself plaintiff to the counter-claim and making the plaintiff to the suit defendant to the counter-claim. By the counter-claim the defendant asked for a declaration that there was due and owing to the plaintiff to the counter-claim Rs. 15,097 and for a declaration that the plaintiff to the counter-claim has a charge on the property and the rents arising therefrom in respect of the said sum and for a preliminary mortgage decree. The defendant to the counter-claim did not put in a reply thereto, and consequently the plaintiff to the counter-claim took out a notice of motion, which is now before me, asking for an order to set down the suit on board for judgment on the counter-claim for default of reply, and for judgment in terms of the prayers to the counter-claim. One Esmailji Sakerwalla, a constituted attorney of the plaintiff to the suit, in an affidavit sworn on January 15, 1940, submitted that no reply to the counter-claim was necessary and that this motion was not competent.

(2.) MR. Engineer in support of the motion drew my attention to Rules 135 and 138 of the High Court Rules. Rule 135 gives liberty to, though it does not impose an obligation upon, any person named in a written statement as a party to a counter-claim to deliver a reply. Rule 138 empowers plaintiff to a counter-claim, if the defendant to the counter-claim makes default in putting in a reply to the counter-claim, to get the suit set down on motion for judgment on the counter-claim. This is what has been done in the present motion, and MR. Engineer has submitted that those rules in terms entitle the plaintiff to the counter-claim to adopt the course which has been adopted on this motion if no reply is put in by any defendant to the counter-claim.

(3.) MR. Engineer does not object to my giving the defendant an opportunity even now of putting in a reply to the counter-claim, but submits that I ought to make her pay the costs of this motion.