AMITA VERMA Vs. NEELAM VERMA

JUDGEMENT

(1.) The instant misc. petition under Article 227 of the Constitution of India has been filed at the instance of petitioners- defendants assailing the orders dated 19th of February, 2025 and 3rd of March, 2025 passed by the Court of Third Civil Judge, Sr. Division, Guna in RCSA No.107 of 2021, whereby application filed by petitioners- defendants No.1 and 2 under Order 8 Rule 6-A of CPC for taking their counter-claim and application filed under Order 8 Rule 1(3) of CPC for taking documents on record, have been rejected.

(2.) Facts giving rise to present petition, in short, are that respondent No.1 filed a civil suit for possession and grant of mesne profit against the defendants therein alleging that she is the wife of Dr. Rakesh Verma and defendant No.1 is wife of late Shri Rajeev Verma and defendant No.2 is son of defendant No.1. Her husband and husband of defendant No.1 are real brothers and sons of Late Shri Pyarelal Verma and Smt. Sarla Verma. Her mother-in-law Smt. Sarla Verma had purchased a house situated at Punjabi Mohalla vide a registered sale deed dated 01- 12-1964 with her own money and thereafter another floor was constructed in the year 1984. Smt.Sarla Verma was being owner of the house in question, had executed a ''Will'' and got it registered on 9th of July, 2013 and after her death on 27th of March, 2015, the ''Will'' became ineffective and as per the said ''Will'', plaintiff became absolute owner of property. Another son of Smt. Sarla Verma had died earlier, therefore, defendants no. 1 and 2 were living at the ground floor of the house and occupied by them. Therefore, plaintiff has filed suit for possession and mesne profit. Defendants filed their written statement and denied the plaint averments with pleadings that the house in dispute has not been purchased by earning of Smt. Sarla Verma. Late Shri Pyarelal Verma had purchased the house in the name of Smt. Sarla Verma and the house in question is the property of Joint Hindu Family Property and the ''Will'' is not in accordance with law because Smt. Sarla Verma had no right to execute the ''Will'' and prayed for dismissal of suit. Another suit was filed by husband of plaintiff on 2/1/2017 against the defendants and the same was dismissed vide judgment dtd. 25/1/2025 in which, the subject matter of present suit was also involved. Therefore, defendants filed a counter-claim under Order 8 Rule 6-A of CPC against which, plaintiff filed her objection. The trial Court vide impugned order dated 19th of February, 2025 rejected counter-claim of defendants, against which defendants filed an application under Order 47 Rule 1 of CPC, which was too dismissed by the trial Court vide order dated 4th of March, 2025. Defendants also filed an application under Order 8 Rule 1(3) of CPC r/w Sec. 151 of CPC for taking documents i.e. written statement. The trial Court vide impugned order dated 3rd of March, 2025 rejected the application of defendants. Hence, this petition.

(3.) It is contended on behalf of petitioners- defendants that the trial Court has committed an error in passing the impugned orders by misunderstanding the scope and provisions of Order 8 Rule 6-A of CPC although the defendants have legal right to file counter-claim in addition to their right of pleadings against the plaintiff. The defendants had filed application under Order 8 Rule 6-A of CPC along with application under Order 6 Rule 17 of CPC to incorporate the essential pleadings in written statement by supporting of counter-claim but the Trial Court has committed a jurisdictional error while rejecting the application of defendants vide order dated 19th of February, 2025, holding that plaintiff has not made any amendment , therefore, the counter-claim is not maintainable. Defendants filed another application under Order 8 Rule 1(3) of CPC for taking documents as another suit in which the same property in question is under adjudication and the documents are required for proper and just adjudication of present suit but the trial Court rejected the application of defendants vide impugned order dated 3rd of March, 2025 whereby the right of defendants for defending their case has been infringed. Relying on the judgment of coordinate Bench (Principal Seat) of this Court in the case of Manoj Kumar Gupta vs. Santosh Kumar Gupta (MP No. 5606 of 2024 decided on 27th of November, 2024), it is contended that counter-claim may be permitted to be filed after a written statement till the stage of commencement of recording of evidence of plaintiff. No prejudice would be caused to the party if counter-claim is allowed. Hence, prayed for setting aside the impugned orders.