NABAKISHORE SAHU Vs. STATE

JUDGEMENT

(1.) Petitioners assail correctness of the order dated 10-5-1990 passed by the learned Subordinate Judge, Bhubaneswar, rejecting the prayer of plaintiffs for an order that the counter-claim filed by the defendants was to be excluded, as the claim raised ought not to be disposed of by way of counter-claim but in an independent suit in terms of rule 6-C of Order 8 of the Code of Civil Procedure, 1908 (in short 'the Code').

(2.) The refusal was made on the following background. Petitioners as plaintiffs have filed Title Suit No. 170 of 1987 which is pending adjudication in the court of the learned Subordinate Judge, Bhubaneswar. During pendency of the suit, defendant No. 3 filed an application for amendment of the written statement filed inter alia on the ground that he wants to set up a counterclaim in terms of Order 8, Rule 6C of the Code. The plaintiffs objected to the prayer for modification which was nevertheless allowed. After the counter-claim was admitted and the issues were settled, the prayer for exclusion as aforesaid was made. The learned Subordinate Judge was of the view that since similar objection of the plaintiffs to the prayer for amendment of the written statement in the form of counter-claim was raised and overruled, the present prayer for exclusion of the counter-claim based on identical premises was not maintainable.

(3.) . The learned counsel for the petitioners submits that the conclusions are erroneous inasmuch as unrelated matters have been considered to be identical and therefore, the order of refusal is not maintainable. The learned counsel for opposite party No. 3, however, submits that the contentions being identical and since there was adjudication at the time of possibility of consideration of the same question again was ruled out.