KHIROD CHANDRA DASH Vs. BIMAL DASH

JUDGEMENT

(1.) THE Petitioners in this writ application seek to challenge an Order Dated 22.12.2007 passed by the Civil Judge (Jr. Divn.), Salipur, in Civil Suit No. 23 of 2005, by which order the Learned Civil Judge, accepted the filing of a counter claim raised by defendants 5 to 7 (Opp. Parties 1 to 3 herein) against defendants 1 to 4 (who are Petitioners in this writ application). Learned Counsel for the Petitioners prays for exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution in the present case since the subordinate Court has assumed a jurisdiction which it does not have and/or exercised jurisdiction in a manner not permitted by law resulting in failure of justice and great injustice to the case of the present Petitioners.

(2.) THE brief facts leading to filing of the present case are that Opp. Party No. 4, as Plaintiff has filed C.S.No. 23 of 2005 before the Civil Judge (Jr. Divn.), Salipur and has impleaded present Petitioners as defendants 1 to 4 in the said suit. Opp. Parties 1 to 3 have been impleaded as defendants 5 to 7 in the said suit, wherein, the Plaintiff has made a prayer seeking grant/declaratior. of easementary right of passage in respect of H. Plot No. 329 belonging to the Petitioners and H. Plot No. 328 belonging Opp. Parties 1 to 3. It is averred that the present Petitioners filed their written statement denying the claim of the Plaintiff (Opp. Party No. 4) whereas defendants 5 to 7 (Opp. Parties 1 to 3) have filed a separate written statement supporting the claim of the Plaintiff. Further, in the said suit, three witnesses including the Plaintiff were examined and cross -examined and at the said stage of the suit, defendants 5 to 7 filed a counter claim under Order 8, Rule 6A CPC claiming a right of easement in respect of H. Plot No. 329 belonging to defendants 1 to 4 (Petitioners herein). That petition under Order 8, Rule 6A filed by Opp. Parties 1 to 3 was contested and came to be allowed by the Civil Judge vide the impugned Order Dated 22.12.2007 under Annexure -5 to the Writ Petition.

(3.) MR . Jena, Learned Counsel for Opp. Parties 1 to 3 while supporting the impugned order has placed reliance upon a Judgment of this Court in the case of Lingaraj Sarat v. Akhaya Kumar Sarat and Ors. 2007 (II) OLR 374 (which was also relied upon by the Trial Court) and submitted that a counter claim by one defendant against a co -defendant is maintainable. He submitted that by permitting the counter claim to be raised, the same land in question is also involved in the present suit counter claim by the co -defendants in the present suit has been lawfully accepted since it would result in finally adjudicating the matter inter se between ail the parties and has been allowed with the object of avoiding multiplicity of cases.