MUCHIRAM KAMILA Vs. JOYDEB KAMILA

JUDGEMENT

(1.) By impugned order being No.66 dated 28 January, 2010 passed by the learned Civil Judge (Junior Division), Second Court at Tamluk, the defendants prayer for filing additional written statement for introducing a counter claim in the suit, was rejected by the learned Trial Judge on two fold grounds; firstly for the reason of delay in applying for leave to file additional written statement for introducing counter claim in the suit and secondly for non-disclosure of the cause of action for the counter claim either in the leave petition or in the proposed additional written statement. The propriety of the said order is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendants/petitioners.

(2.) Heard Mr. Tapabrata Chakraborty, learned Advocate, appearing for the petitioners and Mr. Sabyasachi Bhattachajee, learned Advocate, appearing for the opposite parties. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiffs/opposite parties filed a suit for declaration and injunction against the defendants/petitioners herein. The plaintiffs claimed that both the plaintiffs and the defendants have their right of passage over the Ka schedule property. The plaintiff further claimed that the defendant has created obstruction in the use of the said passage by the plaintiff by removing the bricks from a part of such passage. Hence the aforesaid suit for declaration and injunction was filed by the plaintiffs praying for declaration of their joint right of user of the passage over the said Ka schedule property and for permanent injunction for restraining the defendants from raising any obstruction in the use of the said passage by the plaintiff.

(3.) The defendants are contesting the said suit by filing written statement. In the written statement the defendants contended that the plaintiff is a desperate and greedy person. It was alleged by the defendant that the plaintiff illegally and unlawfully erected a cow shade and Hari temple on the northern part of the suit passage for creating obstruction in the use and enjoyment of the said passage by the defendant. It was further sated by him that when the defendant tried to resist the plaintiff from doing so, the plaintiff himself as well as his other men and agents threatened the defendants with dire consequence.