ATMARAM GANGADHAR DESHWALI Vs. NOORMOHAMMAD

JUDGEMENT

(1.) Being aggrieved by the order dated 15-12-2004 passed by Civil Judge, , Class-I Narsinghgarh, District Rajgarh whereby the counter-claim filed by the petitioners was dismissed, the present petition has been filed.

(2.) Short facts of the case are that respondents No. 1 and 2 filed a suit for permanent injunction against the petitioners on 8-3-2004. After service of summons, petitioners appeared and submitted the written statement on 5-5-2004. Thereafter, on 1-10-2004 petitioners submitted the counter-claim and prayed for declaration, possession and mesne-profit. By the impugned order the counter-claim submitted by the petitioners was dismissed, against which the present petition has been filed.

(3.) Learned counsel for the petitioners submit that learned Court below committed error in dismissing the counter-claim submitted by the petitioners. It is submitted that counter-claim is a cross suit, which is required to be decided along with the suit. It is submitted that even after filing of the written statement, the counter-claim could have been filed and the same was required to be decided on merits after framing of the issues and recording of the evidence. It could not have been dismissed on the ground of limitation without framing of the issues and recording of the evidence. Learned counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Ramesh Chand Ardawatiya v. Anil Panjwani (2003) 7 SCC 350 : AIR 2003 SC 2508 wherein the Hon'ble Apex Court while dealing with Order VIII, Rule 6-A of the CPC has held that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of the legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order 6, Rule 17, CPC or under Order 8, Rule 9, CPC, as the case may be.