MANGILAL AGARWALLA Vs. MANJULATA SAHU

JUDGEMENT

(1.) ORDER dated 17.12.1996 of learned Civil Judge (Senior Division), Talcher in Title Suit No. 15 of 1990 and Judgment of learned Addl. District Judge, Angul in Civil Revision No. 34/11 of 1996 -1997 are under challenge under Article 227 of the Constitution of India. Plaintiffs are the petitioners and defendants are the opposite party Nos. 3 and 4.

(2.) THE fact noted in the impugned orders is not in dispute. According to plaintiffs' case before the Court below, lands appertaining to Plot No. 1589 having an area of Ac. 0.130 decimals and Plot No. 1590 having an area of Ac. 0.030 decimals under Khata No. 954 of mouza -Nizigarh town, Talcher is the ancestral property of the plaintiffs and defendant No. 3. Residential houses have been constructed on the western side of Plot No. 1589 and on a part of Plot No. 1590 by leaving a space of four links in east -west and sixty -five links in north -south and that stripe of land is the disputed suit land. Plot Nos. 1591 and 1591/2984 are adjacent land of Plot Nos. 1589 and 1590. In 1986, defendant No. 1 purchased land appertaining to Plot No. 1591 and defendant No. 2, i.e. the husband of defendant No. 1, started construction of a building by encroaching upon the suit land giving rise to the cause of action for filing the suit. Defendants entered appearance in the suit in the year 1990 and filed their written statement in the year 1991. Substance of the pleadings of the defendants is that plaintiffs have encroached upon a stripe of land of 3 x 38 links of Plot No. 1591. When the suit was posted for hearing, defendants filed application for amendment of their written statement to incorporate a plea that they purchased Plot No. 1591/2984 under Registered Sale Deed dated 24.10.1996 on the basis of a plain paper agreement dated 05.05.1986 and that defendants are in possession of the said land since 1986 and further that when the defendants constructed their house on Plot No. 1591, it came to light that plaintiffs have encroached upon a portion of the land of Plot No. 1591/2984 to the extent of 6 x 85 links. Accordingly, they advanced the defence plea by amending the written statement and also filed the counter claim under Order 8, Rule 6 -A of Civil Procedure Code (in short C.P.C.). They filed their application in Nvember, 1996. Plaintiffs opposed to that application on the ground that such a counter claim is not maintainable. Both the Courts below while allowing the application for amendment of the written statement, also ordered to allow the counter claim on the ground that such an attempt could avoid multiplicity of litigation between the parties for the adjoining land.

(3.) IN course of submission, besides the provision in Order 8, Rule 6 -A, C.P.C, the following citations were referred to by the parties. Those are the cases of Biswanath Sahu v. K. Somanath Subudhi 70 (1990) CLT218, Ramsewak Kashinath v. Sarafuddin and Ors. 1990 (II) OLR 483, Shri Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. 1996 (II) OLR (SC) 48, Mangulu Pirai v. Prafulla Kumar Singh and Ors. : AIR1989Ori50 . In the aforesaid decisions, ratio has been laid down that filing of a counter claim under Order 8, Rule 6 -A, C.P.C. is maintainable at any stage of the suit if the cause of action accrues against the plaintiff either before or after filing of the suit but before the defendant delivered his defence or before the time limit for delivering his defence has expired. In the case of Biswanath Sahoo (supra), after reiterating such principle and following aforesaid settled principle of law, this Court rejected the counter claim as not maintainable on the ground that the cause of action for the counter claim arose after filing of the written statement. The same principle is applicable to the present case. Under such circumsance, the counter claim advanced by the petitioner on the basis of a cause of action arose in 1996 is not entertainable. That simple fact and the requirement of law was failed to be noticed by both learned Civil Judge (Sr. Division), Talcher and learned Addl. District Judge, Angul.