MEHBOOB KHAN AND ANOTHER Vs. RADHAKISHAN AND OTHERS

JUDGEMENT

(1.) Being aggrieved by the order dated 3.8.2010 passed by Civil Judge, Class I. Shujalpur, District Shajapur in C.S. No. 142- A/2009 whereby the application filed by the petitioners under Order 6, Rule 17, C.P.C. was dismissed, present petition has been filed.

(2.) Short facts of the case are that respondent No. 1 filed a suit for declaration and permanent injunction on 2.8.2005. The suit was contested by the petitioners by filing written statement on 8.9.2008. The application for grant of temporary injunction filed by the respondent No. 1 was dismissed, against which an appeal was filed by the respondent No. 1 which was allowed and the temporary injunction was granted by the Appellate Court vide order dated 28.4.2009 in M.A. No. 13/2008. Thereafter, amendment application was filed by the petitioner on 1.4.2010 wherein it was prayed that the petitioners be permitted to amend the written statement by way of filing counter-claim for which valuation was put as Rs. 25,600.00 and the Court-fees of Rs. 1,600.00 was paid. The application was opposed by the respondent No. 1. After hearing the parties, learned Court below dismissed the application against which present petition has been filed.

(3.) Learned Counsel for the petitioners argued at length and submits that the impugned order passed by the learned Court below is illegal. incorrect and deserves to be set aside. It is submitted that initially the suit was filed by the respondent No. 1 before the Civil Judge, Class I Shujalpur. It is submitted that counter-claim was filed by the petitioners by way of amendment within the pecuniary jurisdiction of Civil Judge Class-I. It is submitted that in the facts and circumstances of the case, there was no justification on the part of the learned Court below in dis- missing the application filed by the petitioners. Learned Counsel place reliance on a decision of Honourable Apex Court in the matter of Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day, AIR 1997 SC 3985 wherein Honourable Apex Court has held that in a counter-claim, an application under Order 8, Rule 6- A is not ex facie barred after filing of written statement. It is submitted that petition filed by the petitioners be allowed and the impugned order be set aside.