Madhya Pradesh High Court
Smt. Prabha Jain vs Udaiveer Singh on 4 April, 2022
Author: Sunita Yadav
01
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. PETITION No. 270 of 2021
Between:-
1. SMT. PRABHA JAIN S/O LT SURENDRA
KUMAR JAIN , AGED ABOUT 76 YEARS,
OCCUPATION: BUSINESS DAGA BHAWAN 3
LAXMIBAI COLONY MAHARANI
LAXMIBAI ROAD (MADHYA PRADESH)
2. ADITYA KUMAR JAIN S/O LATE SHRI
SURENDRA KUMAR JAIN , AGED ABOUT 48
YEARS, OCCUPATION: BUSINESS DAGA
BHAWAN 3 LAXMIBAI COLONY MAHARANI
LAXMIBAI ROAD (MADHYA PRADESH)
3. DEEPAK SETH S/O LATE SHRI BHOGILAL
SETH , AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS DAGA BHAWAN 3
LAXMIBAI COLONY MAHARANI
LAXMIBAI ROAD (MADHYA PRADESH)
....PETITIONERS
(BY SHRI N.K. GUPTA LEARNED SENIOR COUNSEL WITH
SHRI RAVI GUPTA, ADVOCATE )
AND
1. UDAIVEER SINGH S/O ARJUN SINGH VILL
UDI POST UDI (UTTAR PRADESH)
2. ASHOK DAGA S/O LATE SHRI RANGLAL
DAGA , AGED ABOUT 79 YEARS, 303-304,
BEGA BUILDING, SATELLITE TOWER, SR
NO. 81/2, MUNDHWA (PUNE)
(MAHARASHTRA)
3. NISHANT DAGA S/O LATE SHRI AJAY DAGA
303-304, BEGA BUILDING, SATELLITE
TOWER, SR NO. 81/2, MUNDHWA (PUNE)
02
(MAHARASHTRA)
4. VISHAL DAGA S/O LATE SHRI AJAY DAGA
303-304, BEGA BUILDING, SATELLITE
TOWER, SR NO. 81/2, MUNDHWA (PUNE)
(MAHARASHTRA)
5. ARVIND DAGA S/O LATE SHRI RANGLAL
DAGA THROUGH ASHOK DAGA 303-304,
BEGA BUILDING, SATELLITE TOWER, SR
NO. 81/2, MUNDHWA (PUNE)
(MAHARASHTRA)
6. ARUN DAGA S/O LATE SHRI RANGLAL
DAGA THROUGH ASHOK DAGA 303-304,
BEGA BUILDING, SATELLITE TOWER, SR
NO. 81/2, MUNDHWA (PUNE)
(MAHARASHTRA)
7. SMT. LAXMI SABU, THROUGH ASHOK
DAGA W/O N.A 303-304, BEGA BUILDING,
SATELLITE TOWER, SR NO. 81/2,
MUNDHWA (PUNE) (MAHARASHTRA)
8. SMT. PARWATI BANGDI W/O SHRI
BRAJKISHORE BANGDI THROUGH ASHOK
DAGA 303-304, BEGA BUILDING, SATELLITE
TOWER, SR NO. 81/2, MUNDHWA (PUNE)
(MAHARASHTRA)
9. SMT. MRIDULA DANDIYA THROUGH
ASHOK DAGA W/O N.A. 303-304, BEGA
BUILDING, SATELLITE TOWER, SR NO. 81/2,
MUNDHWA (PUNE) (MAHARASHTRA)
10. SMT. MANJU MAHESHWARI THROUGH
ASHOK DAGA W/O N.A. 303-304, BEGA
BUILDING, SATELLITE TOWER, SR NO. 81/2,
MUNDHWA (PUNE) (MADHYA PRADESH)
11. PANKAJ SETH S/O LATE SHRI BHOGILAL
SETH , AGED ABOUT 58 YEARS,
OCCUPATION: BUSINESS DAGA BHAWAN 3
LAXMIBAI COLONY MAHARANI LAXMIBAI
ROAD (MADHYA PRADESH)
03
12. SMT. JASUMATI SETH W/O SHRI
CHANDRAKANT SETH , AGED ABOUT 76
YEARS, OCCUPATION: HOUSE WIFE
SAMRAJYA SOCIETY NEAR AKOTA
STADIUM, BADODARA (GUJRAT)
PERMANENT R/O 3, LAXMIBAI COLONY,
MAHARANI LAXMIBAI ROAD, (MADHYA
PRADESH)
....RESPONDENTS
(BY SHRI V.K. BHARDWAJ LEARNED SENIOR COUNSEL
WITH SHRI ANAND BHARDWAJ, ADVOCATE )
...............................................................................................
This petition coming on for hearing this day, the court passed
the following:
ORDER
(Passed on 4th of April, 2022)
The present petition has been filed under Article 227 of the
Constitution of India challenging the order dated 13/10/2020 passed
in Revision No.24A/2015 by 3rd Civil Judge, Class-II, Gwalior (M.P.)
whereby application filed by the plaintiffs/petitioners u/S.151 of CPC
raising objection about the maintainability of counter claim filed by
the defendants No.9 to 10 after framing of issues and when the case
was fixed for plaintiffs' evidence has been rejected.
2. The brief facts giving rise to present petition are that the
plaintiffs/petitioners filed a suit for specific performance and
permanent injunction with regard to property known as Daga House
situated at Laxmibai, Colony, Lashkar, District Gwalior (M.P.). The
respondents/defendants filed written statement and the issues were
framed by the trial Court on 16.09.2016. Thereafter, case fixed for
plaintiffs' evidence. After filing of written statement by defendants
No.9 & 10 and framing of issues by learned trial Court, defendants
filed a counter claim on 05.03.2017 against the plaintiffs. An
application was filed by the petitioners under Order 7 Rule 11 CPC
stating therein that the counter claim filed by the defendants No.9 &
10 is not maintainable and question about the court fees was also
raised by the petitioners. Thereafter, reply to the application under
Order 7 Rule 11 CPC was filed by defendants No. 9 and 10. Learned
trial Court decided the application under Order 7 Rule 11 of CPC on
04/04/2018 whereby counter claim filed by defendants No.9 and 10
was separated from the proceedings of the suit. Against the order
dated 04/04/2018 passed by learned trial Court, respondent- Udaiveer
Singh and another have filed a petition bearing M.P. No.1979/2018
before this Court which was decided on 04/10/2018. In compliance of
order dated 04/10/2018 passed by this Court, again arguments with
regard to maintainability of counter claim was heard by learned trial
Court and order was passed on 21.12.2018. Against the order dated
21/12/2018, petitioners preferred a petition bearing M.P.
No.1322/2019 before this Court assailing the order dated 21/12/2018
which was decided on 03/10/2019. Thereafter, learned trial Court
fixed the case for hearing on counter claim. At this stage, the
petitioners filed an application u/S.151 of CPC which was dismissed
by order impugned.
3. Learned counsel for the petitioner contend that the order
impugned being perverse, illegal and against the settled principles of
law is liable to be quashed. It is further contended that after order
passed by Hon'ble High Court in M.P. No.1322/2019, the case was
fixed by the trial Court for bringing counter claim on record but since
filing of application by the plaintiffs u/S.151 of CPC, the counter
claim was not taken on record and was not part of the proceedings of
the trial Court. It is also contended that the trial court failed to take
into consideration the provisions of Order 8 Rule 6-A of CPC,
wherein it is mentioned that if the counter claim is filed after framing
of issues when the case was fixed for plaintiff's evidence, the same
cannot be taken on record.
4. In support of his submission, learned counsel for the petitioners
has relied upon the order passed by Hon'ble Supreme Court in the
case of Ashok Kumar Kalra Vs. Wing Cdr. Surendra Agnihotri &
Ors. [(2020) 2 SCC 394], wherein Hon'ble Supreme Court has laid
down the law that the counter claim filed after framing of issues and
case fixed for plaintiff's evidence, is not maintainable.
5. On the other hand, learned counsel for the respondents
submitted that the impugned order is in accordance with settled
principle of law and need not to be interfered with.
6. On perusal of record, it is clear that the application filed by the
petitioners under Order 7 Rule 11 of CPC challenging the counter
claim filed by defendants No.9 and 10 has been decided by the trial
Court on 4.4.2018. Against the order dated 4.4.2018, a petition
bearing M.P. No.1979/2018 was filed before this Court which was
decided on 04.10.2018. Thereafter, petitioners preferred a petition
bearing M.P. No.1322/2019 assailing the order dated 21.12.2018
which was decided on 3.10.2019. Thus, it is clear that the issue raised
by petitioners has already attained finality.
7. It is well settled that any subsequent decision on an identical or
similar point by Coordinate or larger Bench or even change of law
cannot be made the basis for recording a finding that the order sought
to be reviewed suffers from an error on the face of record.
8. The Apex Court decision in the case of Dr. Subramanian
Swamy Vs. State of Tamil Nadu & Ors. [(2014) 5 SCC 75], in para
51 held thus;
"51. There can be no dispute with respect to the settled
legal proposition that a judgment of this Court is
binding,.....It is also correct to state that, even if a
particular issue has not been agitated earlier, or a
particular argument was advanced, but was not
considered, the said judgment does not lose its binding
effect, provided that the point with reference to which
an argument is subsequently advanced, has actually
been decided. The decision therefore, would not lose its
authority, "merely because it was badly argued,
inadequately considered or fallaciously reasoned".
9. Therefore, the argument of petitioners is not acceptable that
after the issue has attained finality in the light of subsequent judgment
of Apex Court in the case of Ashok Kumar Kalra (supra), the trial
Court has got a power to review the order of this court or order of trial
court.
10. This Court in the case of Jagjeet Singh Vs. Bhopal Vikas
Pradhikaran and Anr. [2006 (1) M.P.L.J. 254], held that if the issue
has been decided between the parties in proceedings, it is having
effect of res-judicata and such issue cannot be reopened by the party
at a later stage in the same proceedings.
11. In the light of above, the issue raised by petitioners in
application filed u/S.151 of CPC with regard to the counter claim
cannot be reopened again.
12. The Apex Court while dealing with the case of Shalini Shyam
Shetty Vs. Rajendra Shankar Partil [ (2010) 8 SCC 329], held that
in civil/private disputes, High Court can interfere if there is violation
of some statutory duty on the part of some statutory authority or any
infraction of statute or it can be shown that a private individual is
acting in collusion with a statutory authority.
13. In view of above facts and circumstances of the case as well as
the principles laid down by Apex Court and High Court, this Court
does not find any violation of statutory duty on the part of trial Court.
14. Consequently, the present petition is merit-less and devoid of
substance and hereby dismissed. No order as costs.
(SUNITA YADAV)
vpn JUDGE
VIPIN KUMAR
AGRAHARI
2022.04.05
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00' 10:44:10
+05'30'
