SHRIMATI BASANTI JENA Vs. APANI BEWA

JUDGEMENT

(1.) HEARD Learned Counsel for the parties. A Composite order passed on 08.04.2013 in Civil Suit No. 110 of 2009 of the Court of 1st Addl. Civil Judge (Senior Division); Bhubaneswar is the subject matter of challenge in this Writ Petition. The petition filed by the Defendant Nos. 7 & 8 for the acceptance of written statement was allowed. A petition filed to reject the counter claim submitted by the Defendant Nos. 7 & 8 & for exclusion of counter claim submitted by the Defendants was rejected. A petition filed by Defendant No. 2 for rejection of written statement submitted by the Defendant Nos. 7 & 8 was also rejected. Petition filed by the Plaintiff to reject the written statement of the Defendant Nos. 7 & 8 was also rejected.

(2.) THE present Petitioner, being the Plaintiff of Civil Suit No. 110 of 2009 has filed an application for setting aside the aforesaid order. The suit has been filed for declaration of right, title & confirmation of possession & in the alternative for recovery of possession of the suit land from the Defendants. The Defendant Nos. 7 & 8 appeared in the case & on 28.08.2009 filed their written statement along with a petition for acceptance of the same. It is revealed from the records that the Learned 1st Addl. Civil Judge (Senior Division) on 30.09.2009 directed that the Defendant Nos. 7 & 8 should serve copy of the written statement & the petition for acceptance thereof on the other Defendants & the Plaintiff & posted the records to 30.11.2009. It is further borne out from the records that on 11.01.2010 the Defendant Nos. 7 & 8 submitted their counter claim. The said counter claim was accepted on 22.03.2010. However, no order by then was passed on the petition dated 28.08.2009 filed by the Defendant Nos. 7 & 8 to accept the written statement. But Fact remains that by the date of filing of the counter claim, i.e. 11.01.2010, the Defendant Nos. 7 & 8 had already filed their written statement. However, the Court has not passed any order on the petition to accept the same. Taking Into Consideration the reported case of Sk. Salim Hazi Abdul Khayumsab Vrs. Kumar & Others, : AIR 2006, SC 396, the Learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar accepted the written statement filed by the Petitioner & rejected the petition for exclusion of the counter claim.

(3.) THAT the case, this Court is of the opinion that even though no formal order has been passed by the Learned 1st Addl. Civil Judge (Senior Division) & later on an order has been passed on 08.04.2013 accepting the written statement, the technical clog which has been removed later, will not affect the substantial right of a party or the powers of the Court to accept the counter claim submitted by the Defendant Nos. 7 & 8, Secondly, the Learned Counsel for the Petitioner submits that the written statement has been submitted on 28.08,2009 & the counter claim indicates that the cause of action for the said claim arose on 5.12.2009. However, a careful reading of paragraph -18 of the counter claim reveals that the cause of action to file the counter claim for the Defendant Nos. 7 & 8 arose for the first time when they served with the notice in the suit & they took part in the proceeding by way of filing show cause in the interim application preferred by the Petitioner under Order 39 Rules 1 & 2 read with Section 151 of the Code & later on when this Court passed an order in F.A.O. No. 213 of 2009, on 23.10.2009 to maintain status quo. However, it is pleaded that the cause of action arose lastly on 05.12.2009 when the Plaintiff & her supporters attempted to trespass to the schedule -2 property of the counter claim & raised a temporary shed over schedule No. 2 land. Thus, it appears that the part of cause of action arose before filing written statement.