SHAIK JILANI BASHA Vs. SHAIK SHAKEERA

JUDGEMENT

(1.) Heard Sri P.Rajasekhar, learned counsel representing the revision petitioner and Sri A.Chandraiah Naidu, learned counsel representing respondent and perused the impugned order.

(2.) Sri P.Rajasekhar, learned counsel representing the revision petitioner, petitioner-defendant in I.A.No.1062 of 2006 in O.S.No.111 of 2006 on the file of the Principal Senior Civil Judge, Nellore, had taken this court through the impugned order and would submit that dismissal of the application praying for putting forth of the counter-claim on the ground that the written statement already was filed, cannot be a sustainable ground. The learned counsel placed strong reliance on the decisions in Mahendra Kumar and another V. State of M.P. and others and Smt. Shanti Rani Das Dewanjee V. Dinesh Chandra Day (dead) by LRs.,. The learned counsel also while further elaborating his submissions would maintain that though the application was filed under Order VI Rule 17 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience), such application has all trappings of counter- claim, and hence, quoting of wrong provision cannot be a ground to dismiss the application. The learned counsel placed strong reliance on the decision of this Court in Shaik Yusuf Basha V. Delhi Massa Bi. The learned counsel also would further submit that the plea of bar of limitation or the other like pleas may have to be decided at the appropriate stage. Even otherwise the respondent- plaintiff before the learned Principal Senior Civil Judge, Nellore, did not raise this ground. While further elaborating his submissions the learned counsel pointed out that it is true that a suit in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, already had been instituted. But, however, whether this counter-claim is hit by Order II Rule 2 of the Code also may have to be gone into at the appropriate stage and that cannot be a ground to dismiss the said application. Hence, the learned counsel would contend that inasmuch as the reasons recorded by the learned Principal Senior Civil Judge, Nellore, being unsustainable reasons, the impugned order is liable to be set aside.

(3.) Per contra, Sri A.Chandraiah Naidu, the learned counsel representing respondent-plaintiff would maintain that this application was filed under Order VI Rule 17 of the Code and a counter-claim filed by the defendant would be governed by Order VIII Rule 6-A of the Code and in the light of the specific language of Order VIII Rule 6A(1) of the Code the application cannot be maintained. The learned counsel also would submit that even otherwise in the instant case the trial already had commenced and the chief-examination affidavit of P.W.1 also was filed. The counsel would submit that even in the light of the proviso to Order VI Rule 17 of the Code, this application is liable to be dismissed and accordingly the learned Principal Senior Civil Judge, Nellore, had rightly dismissed the said application. The learned counsel also would point out that a suit for perpetual injunction in O.S.No.664 of 2005 on the file of III Additional Junior Civil Judge, Nellore, relating to the self same property had been instituted and instead of amending his own pleading, for the reasons best known, may be to get over the rigor of the proviso to Order VI Rule 17 of the Code, this application was thought of. Incidentally, the learned counsel also pointed out that the relief prayed for in the counter-claim of cancellation of the sale deed on the face, is barred by limitation. Even otherwise the counter-claim is hit by Order II Rule 2 of the Code and hence viewed from any angle the impugned order does not suffer from any illegality whatsoever.