RAMSEWAK KASHINATH Vs. SARAFUDDIN

JUDGEMENT

(1.) This revision raises an interesting question of law with regard to the interpretation of Rule 6A of O. 8 of the Code of Civil Procedure. Plaintiff is the petitioner. After dismissal of his suit as not maintainable, the counter-claim filed by the defendants for eviction of the plaintiff was allowed to proceed which was registered as T. S. No. 12A of 1979. The plaintiff filed an application on 5-3-1986 invoking the jurisdiction of the Subordinate Judge under O.8, Rule 6C, Code of Civil Procedure, praying to reject the counter-claim for eviction. The Subordinate Judge having dismissed that petition by order dated 13-3-1986, the plaintiff has filed the present revision.

(2.) The short facts are that the plaintiff filed the suit for declaration of his title, confirmation of possession and permanent injunction against the defendants in respect of a plot of land on 22-6-1979, which was registered as Title Suit No.12 of 1979. The defendants filed their written statement on 15-10-1979. On 17-4-1980, the plaintiff filed an application for amendment of the plaint and as the amendment was minor in nature, the same was allowed by order dated 20th of April, 1980. The defendants thereafter filed an additional written statement on 17-5-1910 and on the same day filed a counter-claim for eviction of the plaintiff from the suit land and for damages. For the relief contained in the counter-claim full court-fee was paid. On 27th, of August, 1980, the plaintiff filed his written statement / objection to the counterclaim filed by the defendants. On 28-10-1981, the plaintiff filed a petition to withdraw the suit with leave to file a fresh suit. By order dated 30-11-1981, the Trial Judge permitted the plaintiff's suit to be withdrawn with leave to file a fresh suit and it was directed that defendants' counter-claim would proceed as a suit. Against the order dated 30-11-1981, permitting the plaintiff to withdraw the suit with leave to file a fresh suit, the defendants filed a revision and the High Court allowed the said revision and rejected the plaintiff's application under Order 23, Rule 1, Code of Civil Procedure, seeking withdrawal of the suit and leave to file a fresh suit. The decision of this Court has since been reported in AIR 1986 Orissa 1) (Khatuna v. Ramsewak Kashinath, a partnership firm). On 28-2-1986, the learned Trial Judge came to hold that the plaintiff's suit was not maintainable for want of registration of the partnership firm as it was hit by S. 69 of the Indian Partnership Act. on 5-3-1986, the plaintiff filed an application objecting to the maintainability of the defendants' counter-claim after dismissal of the plaintiff's suit. The said application having been rejected by the impugned order dated 13-3-1986, the present revision has been filed.

(3.) Mr. Basu, the learned counsel for the plaintiff-petitioner, raises two contentions in assailing the impugned order of the learned Subordinate Judge :-