NURUL HAQUE CHOUDHURY Vs. SAFIQUL HAQUE CHOUDHRY

JUDGEMENT

(1.) This Civil Revision is against the order dated 21. 4.94 passed by the Munsiff No. 2 Karimganj (now Civil Judge(Jr) Division No.2) in Title suit No 235 /87 allowing an application with a prayer to file counter claim by the defendant.

(2.) A suit was filed on 16.7.87 for declaration of title, confirmation of possession and injunction, The Written statement was filed on 18.11.87. Because of usual delay in Civil Court hearing (examination of witness) did not start till 21.4.94. Thereafter an application was filed by the defendants Nos. 1,2, and 3 under Order 6 Rule 17 read with Section 151 C.P.C. to insert a counter claim in the Written statement for declaration of title and possession of defendants Nos. 1,2, and 3. The schedule of counter claim with prayers are quoted below:

(3.) An dbjection was filed by the plaintiff which inter alia are as follows :- "The application submitted by the defendant is baited under Order 8 Rule 6 (b) and is therefore barred under the provisions of Order 6 of the C.P.C. That if the written statements is allowed to be amended in this way then it would be proved in the face of the record that the defendant are avoiding to take risk of filing a fresh suit and are filing the counter claim on taking advantage of the suit filed by the plaintiff without having paid the court fee for such relief. That it is clear on the face of the application submitted by the defendant that they are trying to ammend the written statement without resorting to the provisions of Order 8 Rule 6 (B) of the Code of Civil Procedure for inserting the counter claim in the written statements and as such the application being fradulent is liable to be dismissed with cost. That the application submitted by the defendant is not all for ammending the written statement but it is application to file additional written statement in the form of counter claim and thereby to create a new case other then the one set up by the defendant earlier. That the cases of action for filing the suit by the plaintiff and the cause of action for filing the application for inserting counter claim in the written statement of the defendant are all together different. The defendants is trying to substitute a new cause of action and a new nature of the case and thereby to cause injustice to the plaintiff. Therefore the application submitted by the defendants for ammendment of the W/S after they had already submitted it and now by inserting a separate counter claim in it and thereby the defendants are trying to create a riew case and as such the application submitted by the defendants is liable to be rejected. That the averments made by the defendant in their application to the effect that the plaintiff has collusivelly recorded his name in the khatian of the suit land are all false and baseless. The statements made by the defendant in their application to the effect that they have come to know about the name of the plaintiff having recorded in the khatian of the receipt of the notice and the statements made in the plaintiff and accordingly die filing of counter claim had become necessary are all false statement. The name of the plaintiff has been recorded in the land records of the suit land in the year 1969 in the final settlement and final khatian issued in respect of the suid land. The defendant Nos. 1,2 and 3 have not perused the settlement records in respect of the suit land before their alleged claim of having purchased the suit land. The defendants accordingly have filed the present application on their imaginary beliefs and on the basis of the false statements in order cause injustice to the plaintiff."