JARNAIL SINGH Vs. SOHAN SINGH AND OTHERS

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 16.10.1999 passed by the Civil Judge (Junior Division), Dasuya, whereby application filed by the Defendant -Respondents for restoration of the suit for the purpose of decision of the counter -claim filed by them was allowed.

(2.) A few facts have to be noticed in order to focus the controversy involved in this case. Plaintiff -Gurbax Singh now deceased represented by his legal representative -Jar -nail Singh had filed suit for declaration and permanent injunction on 19.8.1996 restraining Defendant -Sohan Singh and other three Defendants from dispossessing him forcibly from the suit land measuring 41 Kanals 13 Marias situated in Village Urmar. Tehsil Dasuya. District Hoshiarpur fully described in the heading of the plaint wherein the Plaintiff claimed himself to be the tenant of the suit land. The suit was contested by the Defendants. After The issues were framed in this case on 6.3.1997 and the case was posted for the evidence of the Plaintiff, an application along with counter -claim was filed by the Defendants on 28.3.1998 claiming therein possession of the suit land on the basis of having acquired ownership over the suit land as per two sale deeds dated 24.6.1996 registered on 25.6.1996 and 27.6.1996. This application remained undecided. The suit of the Plaintiff was dismissed as withdrawn vide order dated 19.8.1998 passed by the trial Court in the presence of parties and their counsel. Subsequently, the Defendants moved an application under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') with a prayer to decide the counter -claim filed by them. The trial Court, after giving opportunity of hearing to both the sides ordered restoration of the suit for the purpose of decision of the counter -claim. It is against this order, the present revision petition has been filed.

(3.) AT the threshold of the arguments, Learned Counsel for the Petitioner vehemently urged before me that while allowing the application of the Defendants, learned trial Judge had totally ignored that counter -claim was filed after 1 -1/2 years of the filing of the written statement and for that reason it could not have been adjudicated upon in the suit filed by the Plaintiff and only remedy left to the Defendants was to file a separate suit. While countering the submission made, it was urged by the counsel representing the Respondent -Defendants before the dismissal of the suit. Therefore, it had to be decided by the Court and the Defendants could not be driven to file a separate suit as maintained from the side of the Petitioner. Both the parties have referred to case law relating to the controversy raised in this petition in support of their respective stands. It is necessary to notice the same.