SAURABH SUMAN Vs. TUTARI NONIAN

JUDGEMENT

(1.) The present petition has been filed against the order dtd. 17/9/2019 passed in Title Suit No. 170 of 2009 by the learned Civil Judge (Senior Division)-I, Nawada whereby and whereunder the application filed by the defendants/respondent no. 10 dtd. 2/8/2019 to set up counter claim has been allowed.

(2.) Briefly stated, the facts of the case are that plaintiff/petitioner filed Title Suit No. 170 of 2009 for declaration of his title over the suit land and none of the defendants have any right, title, interest and possession over the suit land seeking further relief to confirm the possession of the plaintiff over the suit land against defendant nos. 1-9 while holding that Revisional Survey entry with regard to the land was wrong, baseless and incorrect. The defendants/respondents appeared and filed their written statement. Another written statement was filed on 7/1/2016 which was accepted vide order dtd. 14/1/2016. Issues were framed and parties adduced their evidence. After closure of evidence, argument was concluded finally on 23/2/2017. The defendants while arguing the matter relied upon their first written statement and an objection was raised by the plaintiff/petitioner which was allowed. Meanwhile defendants/respondents filed an application for transfer of the matter to another Court which was allowed vide order dtd. 22/3/2017. Meanwhile, defendant/respondent no. 9 filed a written application bearing CWJC No. 11295/2009 challenging the order dtd. 15/7/2009 passed by the District Magistrate, Nawada in Mutation Revision Case No. 57(R)/08/29(R)/2009 wherein this Court disposed of the writ application vide order dtd. 1/5/2015 observing that the title suit has been pending since 2009 and both the parties were directed to co-operate in disposal of the case and the learned trial court was directed to dispose of the matter without granting unnecessary adjournment to any of the parties and preferably within nine months. It further tanspires that despite the orders of this Court dtd. 1/5/2015 and on conclusion of the arguments of the parties, the learned trial court did not dispose of the title suit. Thereafter, the defendants/respondent no. 10, the subsequent purchaser of a piece of disputed land vide registered sale deed dtd. 3/11/2016 executed after the closure of evidence by both the parties filed an application for becoming a party on 9/8/2018 which was allowed on 27/6/2019. Thereafter, the evidence on behalf of respondent no. 10 was also closed on 8/7/2019 and the date was fixed for final arguments. On 2/8/2019, the respondent no. 10 filed a counter claim before the learned trial court. The learned trial court allowed the counter claim filed on 2/8/2019 by the defendant no. 10/ respondent no. 10 under Order VIII Rule 6A of the Code of Civil Procedure (in short "the Code") vide order dtd. 17/9/2019. The said order is under challenge before this Court.

(3.) Mr. J.S. Arora, learned senior counsel appearing on behalf of the petitioner submitted that the impugned order has been passed ignoring the facts and the law and the learned trial court has failed to apply its judicial mind and passed the impugned order which is contrary to the law. Mr. Arora submitted that it is the settled law that right, title and interest and the subsequent purchaser depends upon the fate of the suit which is being contested by the vendor. Accordingly, purchaser has got no independent right apart from the right which the vendor has got. The respondent no. 10 purchased the disputed land not only during the pendency of the suit but also after the evidence was adduced. Further at the time of filing of written statement, the respondent no. 10 did not make any counter claim though objections were raised by the petitioner, the same were not considered by the learned trial court. The learned trial court failed to understand the import of provision under Order VIII Rule 6A of the Code. The provision for filing counter claim by the defendant have been provided under the statute by the Legislature to avoid multiplicity of judicial proceeding and to save the precious time of Courts. In the present matter, defendant nos. 1- 9/respondent nos. 1-9 have not filed any counter claim. Defendant no. 10 appeared in the picture after 10 years from the date of filing of the suit on the basis of a sale deed executed in his favour after seven years from the date of filing of the suit and after conclusion of evidence of the parties. Though respondent no. 10 has become a defendant in the present suit but so far as his right to counter claim is concerned, dispute is between the plaintiff and the vendor of the defendant/respondent no. 10 but this fact was also not considered by the learned trial court. Mr. Arora further submitted that the learned trial court completely gave a go by to the settled position of law though it considered the authorities still it allowed the counter claim and the same was not even maintainable. Mr. Arora referred to the decision of the Hon'ble Supreme Court in the case of Mahesh Govindji Trivedi Vs. Bakul Maganlal Vyas reported in (2023) 11 SCC 516 wherein the Division Bench of the Hon'ble Supreme Court referred to the three Judge Bench decision of the Hon'ble Supreme Court in the case of Ashok Kr. Kalra Vs. Surendra Agnihotri, reported in (2020) 2 SCC 394 wherein it has been held that Order VIII Rule 6A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. The Hon'ble Supreme Court further held that this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed and further held that the court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed.