LALLA KUMHAR Vs. DHANIR KUMHAR

JUDGEMENT

(1.) Heard on the question of admission. The petitioner/defendant No. 1 has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 18.5.2013, passed by Additional Judge to the Court of First Additional District Judge, Shahdol in Civil Suit No. 21-A/2012 whereby his application filed under Order 8 Rule 6-C of CPC for appropriate direction to exclude the counter claim of defendant No. 26 from consideration has been dismissed.

(2.) The petitioner's counsel after taking me through the papers placed on record along with the impugned order argued that respondent No. 1 plaintiff herein filed the suit against the petitioner and other respondents by impleading as defendants for declaration and perpetual injunction. In response of such suit the respondent No. 26 and 27 have filed their separate written statements. In addition to it the counter claim for partition and their share was also filed against the respondent No. 1/plaintiff as well as against the petitioner and other respondents/defendants. In pendency of the same respondent No. 27 has filed an application under Order 23 Rule 1 of CPC to withdraw her counter claim and on consideration by allowing her application the same has been dismissed as withdrawn. Simultaneously respondent No. 1/plaintiff has also filed an application for withdrawal of suit, the same is pending for adjudication before the trial Court. Meanwhile on behalf of the petitioner/defendant No. 1 an application under Order 8 Rule 6-C of CPC was filed for appropriate direction to exclude the counter claim of defendant No. 26 from consideration, such application was dismissed by the impugned order. He further said that in view of the procedure of Order 8 Rule 6-A and other related provisions of the CPC the inter-se defendant has no right to file the written statement in response of counter claim filed by inter-se defendant against the defendants only the plaintiff may file the rejoinder in the matter. Thus, taking into consideration that plaintiff has filed an application for withdrawal of his suit the counter claim of the respondent No. 26 filed against the petitioner also by allowing his application ought to have been excluded by the trial Court from consideration. However, counsel has fairly conceded that if such counter claim is filed against the respondent No. 1/plaintiff also then same could be proceeded further even after dismissal of the suit because the counter claim is treated to be a suit in the eye of law at the instance of the concerning defendant. He also placed his reliance on reported decisions of this Court in the matter of Udhavdas Tyagi Vs. Srimurti Radhakrishna Mandir, 2002 1 MPWN 31 and in the matter of Narendra Kumar Vs. Smt. Manju Agrawal, 2005 2 MPHT 276.

(3.) Having heard the counsel at length, I have carefully gone through the papers placed on record along with the impugned order so also the cited cases.