DURGA DUTT Vs. BANWARI LAL

JUDGEMENT

(1.) SHRI Durga Dutt petitioner has filed the present revision and it has been directed against the order dated 24.9.1997 passed by Civil Judge (Jr. Division), Narnaul, who allowed the application under Order 6 Rule 17 CPC filed by Banwari Lal plaintiff/respondent.

(2.) SOME facts can be noticed in the following manner :- To begin with, suit No. 1489 of 1993 was instituted at the instance of Banwari Lal plaintiff/respondent for permanent injunction against the defendants namely Bhawani Dutt and Durga Dutt to the effect that they be restrained from interfering into possession, cultivation and use of the suit land measuring 12 marlas gair mumkin house comprised in Khewat No. 165 min, Khatoni No. 213, Killa No. 13//26, situated in village Nangal Kalia, Tehsil Narnaul, as per jamabandi for the year 1990-91. Notice of the suit was given to the petitioner and respondent No. 2, who filed the written statement in which they also raised counter claim. Plaintiff Banwari Lal filed re-joinder to the counter claim. The counter claim was filed on 10.9.1996. The replication was filed on 26.11.1996. Later on Banwari Lal withdrew the suit for one reason or the other and the counter claim of the petitioner continued. It is the case of the petitioner that in the re-joinder to the counter claim since Banwari Lal has not specifically denied the averments of the written statement, therefore, the averments of the written statement shall be presumed to have been admitted and in these circumstances the counter claim of the defendants is bound to be decreed and allowed. When the matter was at the arguments stage, respondent Banwari Lal filed an application under Order 6 Rule 17 CPC and prayed that he may be allowed to elucidate certain matters in the re- joinder filed by him earlier to the counter claim. Notice of the application was given to the petitioner and after hearing the submissions, the learned trial court allowed the application for the reasons contained in paras 5 to 7 of the impugned order dated 24.9.1997, which read as follows:-

(3.) I have heard Mr. S.K. Mittal, Advocate for the petitioner Mr. R.K. Gupta, Advocate on behalf of the respondent No. 1 and with their assistance have gone through the record of this case.