SUBODH MITRA Vs. SUKJA PROKASH SRIVASTAVA

JUDGEMENT

(1.) THE point raised in this Rule is a short but interesting one. The opposite party no. 1 brought Title Suit no. 325 of 1981 in the 3rd Court of the learned Munsif at Alipore, 24-Parganas, against the petitioner and the opposite party no. 3 inter alia, for khas possession of the suit premises and for ether reliefs.

(2.) THE case as made out by the opposite party no. 1 in the plaint inter alia was that the suit premises being premises no. 35, Lake Temple Road, Calcutta, originally belonged to the opposite party No. 2. The opposite party No. 1 purchased the suit premises by a registered Deed of Sale from the opposite party No. 2 on 14. 5. 81. A leave and licence was granted by the opposite party No. 2 to the petitioner and the petitioner used the ground floor furnished flat in the suit premises by virtue of such leave and licence. Inspite of the letter of revocation of licence, the petitioner and the opposite party No. 3 did not vacate the suit premises and claimed tenancy right in respect of the same. The time fixed for filing the written statement in the suit was extended by the learned Munsif till 29. 3. 1932. On 29. 3. 1982 along with the written statement the petitioner filed an application purported to be one under Order viii Rule 6a oil the Code of Civil Procedure setting up by way of counter-claim against the claim of the opposite party No. 1 as made in the plaint, inter alia foe declaration of his tenancy right in respect of the suit premises and also for permanent injunction.

(3.) THE opposite party No. 1 filed, his written objection against the petitioner's said counter-claim. The matter was taken up for hearing by the learned Munsif, 3rd Court at Alipore who by his order No. 18 hated 18. 4. 1983 rejected the said application of counter-claim inter alia upon a finding that the said application ought to have been tiled before the delivery of the defence of the petitioner but the same having been filed along with the written statement on the date for f i ling the written statement could not be accepted as it could nut be said that it was filed before the delivery of defence of the petitioner. The learned Munsif, further held that the said application of counterclaim and the prayer made therein appeared to be as good as plaint of separate suit hence the same could not be allowed. Against the said order the petitioner has novel this Court in revision and obtained the present Rule.