ABDUL RASHID DAR Vs. GHULAM QADIR DAR

JUDGEMENT

(1.) This revision petition is directed against the order dtd. 8/12/2018, passed by Additional District Judge, Srinagar, passed in an application seeking restoration of counter claim in a suit titled Abdul Rashid Dar and others versus Ghulam Nabi Dar and others, and suit for declaration of title with relief of injunction was filed by Abdul Rehman Dar against Ghulam Qadir Dar and others in the court of Principal District Judge, Srinagar.

(2.) The defendants appeared in the suit and along with their written statement counter claim was also filed by them. Proceedings in the suit remained pending. The suit was dismissed in default of appearance vide order dtd. 30/4/2016. The defendant respondents herein filed an application on 5/3/2018 with a prayer to retrieve and restore the counter claim submitted by the applicant/defendant and the same be proceeded under law.

(3.) The contention of the respondents was that in the civil suit with the written statement they had filed a counter claim seeking a prayer that Will/Adoption deed shown to have been executed by Mst. Noori on 20/5/1964, be declared as nullity, void and non est in the eye of law. The suit of the plaintiff was dismissed in default, however, counter claim was to be treated as counter suit which also stands consigned to records. Therefore, the defendants submitted that though the suit was dismissed, the counter claim would be proceed as a suit and, as such, sought restoration of the suit and to be proceeded in accordance with law.