SIMA DEVI Vs. MANORANJAN SINGH

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 227 of the Constitution of India for setting aside the order dtd. 29/6/2019 passed in Miscellaneous Case No. 12 of 2018 by the learned Principal Judge, Family Court, Begusarai whereby the miscellaneous case filed by the petitioner for deciding the counter claim made in Matrimonial Case No. 18 of 2011/11 of 2015 has been dismissed.

(2.) Briefly stated the facts of the case are that the respondent filed a matrimonial case against the petitioner vide Matrimonial Case No. 18 of 2011/11 of 2015 in the court of learned District Judge, Munger/Lakhisarai, which was later on transferred to the Family Court at Begusarai. The petitioner appeared and filed her written statement claiming that the Patna High Court C.Misc. No.1131 of 2019 dt. 3/4/2024 respondent has wrongly retained the stridhan of the petitioner and prayed that those belongings and stridhan of the petitioner which the petitioner was entitled, be returned to her, thus, purportedly making a counter claim in the written statement. Subsequently, the learned Principal Judge, Begusarai vide order dtd. 16/4/2018 dismissed the matrimonial case of the respondent. However, as the counter claim of the petitioner was not considered while dismissing the matrimonial case filed by the respondent, the petitioner filed the miscellaneous case bearing no. 12 of 2018 for consideration of her counter claim and to decide the same on merit. The said miscellaneous case was dismissed at the stage of admission vide impugned order dtd. 29/6/2019 by the learned Principal Judge, Family Court, Begusarai.

(3.) Learned senior counsel, Mr. J. S. Arora, appearing on behalf of the petitioner submitted that the learned Family Court has completely misconstrued the provisions of Order 8 Rule 6A to 6D of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). Mr. Arora further submitted that the learned Family Court committed jurisdictional error by not appreciating the fact that in the matrimonial case no. 18 of 2011/11 of 2015, while filing written statement, this petitioner as Patna High Court C.Misc. No.1131 of 2019 dt. 3/4/2024 a respondent of that case had made counter claim and it has been wrongly held by the learned court below that there was no counter claim. The learned Family Court further committed jurisdictional error by not appreciating the law that under Order VIII Rule 6A of the Code and its analogues provisions if a counter claim has been made, the same has to be treated as plaint of the defendant of that suit and to be decided as a suit. The learned Family Court has also not considered that dismissal of the suit has no effect on counter claim made in the same suit, which is to be decided on its own merits. Mr. Arora further submitted that the learned family court even misconstrued the pleadings and committed an error on record while holding that the matrimonial case has been decided on merit and it did not find any counter claim and further held that the said suit for the purpose of counter claim was not liable to be restored and wrongly dismissed the miscellaneous case at the stage of admission itself.