DATARAM SINGH Vs. BRINDAWAN SINGH

JUDGEMENT

(1.) Parties are in loggerhead on the same issue before this Court for the second time. The petitioners/plaintiffs filed a suit for declaration and permanent injunction. In the said suit, the respondent No.1 filed a fresh counter claim on 23.12.2005 and on the same date withdrew his earlier counter claim. The court below permitted the defendant to file second counter claim. Against the order dated 19.1.2006, whereby second counter claim was permitted to be filed, the present petitioners filed WP No.1940/2006. The order of trial court permitting the defendant to file second counter claim was challenged on the ground that the plaintiffs' objection was not taken into account and considered by the trial court. This Court allowed the petition on 5.4.2007 and opined that the petitioners raised a specific objection that counter claim was not maintainable in view of Order 11 Rules 2 and 3 and Order 23 Rule 1 (4) CPC. The trial court erred in not considering the said objection. The matter was remitted back to the trial court to decide the said application afresh keeping in view the observation made by this Court in WP No. 1940/2006.

(2.) The parties again advanced arguments on application filed under Order 7 Rule 11 CPC. By impugned order dated 9.7.2012, the said application is rejected and counter claim is permitted to be filed.

(3.) Shri N.K.Gupta, learned counsel for the petitioners submits that the counter claim needs to be treated as a plaint in view of Order 8 Rule 6-A(2) CPC. By placing reliance on Order 2 Rule 2 CPC, it is submitted that the defendants' second counter claim is hit by principle of res judicata. Lastly, it is submitted that as per Order 23 Rule 1 (3) and (4), the court below has erred in permitting the defendants to file second counter claim. He submits that in absence of permission to file second claim at the time of withdrawal of first claim, filing of second claim was impermissible.