Madhya Pradesh High Court
Methu vs Late Leemchand S/O Shri Jotiya ... on 29 April, 2022
Author: Amar Nath (Kesharwani)
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ORDER PASSED ON 29th of APRIL, 2022
CIVIL REVISION No.376 of 2021
Between:-
METHU S/O SHRI GULJI BHURIYA , AGED ABOUT 62 YEARS,
1. OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR, AZAD NAGAR (MADHYA PRADESH)
BHALJI S/O SHRI GULJI BHURIYA , AGED ABOUT 59 YEARS,
2. OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
KALJI S/O SHRI GULJI BHURIYA , AGED ABOUT 56 YEARS,
3. OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
KALIASH S/O SHRI GULJI BHURIYA , AGED ABOUT 42 YEARS,
4. OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
.....PETITIONER
(SHRI AYUSHYAMAN CHOUDHARY, LEARNED COUNSEL FOR
THE PETITIONER)
AND
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
GENDUDI BAI W/O LATE LEEMCHAND BHIL , AGED ABOUT 70
1.
YEARS, OCCUPATION: HOUSEWIFE VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
KANJU S/O LATE LEEMCHAND BHIL , AGED ABOUT 47 YEARS,
2.
OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
BHARATSINGH S/O LATE LEEMCHAND BHIL , AGED ABOUT 42
3.
YEARS, OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR AZAD NAGAR (MADHYA PRADESH)
4. LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
BHALSINGH S/O LATE LEEMCHAND BHIL , AGED ABOUT 40
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YEARS, OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
THAVRI S/O LATE LEEMCHAND BHIL , AGED ABOUT 52 YEARS,
5.
OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
TIBLI BAI W/O LATE BABU BHIL , AGED ABOUT 57 YEARS,
6.
OCCUPATION: HOUSEWIFE VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
MADIYA S/O LATE BABU BHIL , AGED ABOUT 37 YEARS,
7.
OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
MAANJU S/O LATE BABU BHIL , AGED ABOUT 34 YEARS,
8.
OCCUPATION: FARMER VILLAGE DEVLI, TEHSIL CHANDRA
SHEKHAR AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
GEETA BAI D/O LATE BABU BHIL , AGED ABOUT 39 YEARS,
9.
OCCUPATION: HOUSEWIFE VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR, AZAD NAGAR (MADHYA PRADESH)
LATE LEEMCHAND S/O SHRI JOTIYA BHIL THROUGH LRS
LEELABAI D/O LATE BABU BHIL , AGED ABOUT 32 YEARS,
10.
OCCUPATION: HOUSEWIFE VILLAGE DEVLI, TEHSIL
CHANDRA SHEKHAR, AZAD NAGAR (MADHYA PRADESH)
STATE OF MADHYA PRADESH THROUGH COLLECTOR
11.
ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENTS
ORDER
01. This civil revision under Section 115 of Code of Civil
Procedure, 1908 (in short "CPC") has been filed being aggrieved by
the impugned order dated 29.09.2021 passed by the Civil Judge,
Junior Division, Jobat, District- Alirajpur (M.P.) in Civil Suit No.5-
A/2019 whereby an application under Order 7 Rule 11 of CPC filed by
the petitioners/plaintiffs has been dismissed.
02. The brief facts of the case are that the petitioners/plaintiffs have
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filed a suit before the learned trial court for declaration and removal of
unauthorised construction and taking possession of the house and
agricultural land and for permanent injunction against the respondents
with a prayer to quash the mutation order dated 07.04.1992 of
Tahsildar, Chandra Shekhar Azad Nagar (Bhabhara), District-Alirajpur
(M.P.) and to declare the petitioners as owner of the disputed
agricultural land.
03. After service to respondent No.1, he appeared before the Trial
Court and submitted his written statement on 19.06.2019 and
thereafter, issues were framed and subsequently, the petitioners
submitted an affidavit under Order 18 Rule 4 of CPC of their
witnesses. In the meantime, respondent No.1 died on 24.08.2019
thereafter, the legal heirs of respondent No.1 as respondent Nos.2 to
11 were brought on record. The legal representatives of respondent
No.1 filed a counter claim on 15.06.2021 after a delay of 2 years and
also filed an application for temporary injunction against the
petitioners. After submission of aforementioned counter claim, the
petitioners/plaintiffs filed an application under Order 7 Rule 11 of
CPC before the trial court and prayed for quashing the counter claim
filed by the legal representatives of the respondent No.1, however, the
trial court has dismissed the said application by the impugned order.
Against which, the present civil revision has been filed before this
Court.
04. Learned counsel for the petitioners/plaintiffs has submitted that
the Trial Court has committed grave error of law and facts in passing
the impugned order whereby the application was arbitrarily and
illegally been dismissed. The order passed by the trial court is against
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the settled principles of law and against the provisions of CPC. The
trial court has committed grave error of law and facts in allowing the
counter claim of the respondent No.1, which has been moved with an
ulterior motive and to cover the lacuna in the written statement filed
by them in the suit. Hence, he prays that the impugned order be set
aside and further, counter claim filed by the respondents be dismissed.
05. None present on behalf of respondent Nos.1 to 10 though
notices have been served upon them.
06. Learned counsel for the petitioners/plaintiffs has placed reliance
upon judgment delivered in the cases of Vijay Prakash Jarath Vs.
Tej Prakash Jarath 2016 (11) SCC 800 and Amanulla Khan Vs.
Zaheer Khan 2001 (1) MPWN 140.
07. I have heard the learned counsel for the parties and perused the
record. The sole question in the present petition is that "whether the
counter claim filed by the legal representatives of defendant No.1 after
the death of defendant No.1 of which cause of action arose on
14.01.2021, after about two years from the submission of written
statement by original defendant No.1 i.e. Leemchand, can be
entertained?"
08. It is undisputed fact that the present respondent Nos.1 to 10 are
legal representatives of Late Shri Leemchand, who was defendant
No.1 in civil suit No.5-A/2019 and after the death of Shri Leemchand,
the present respondent Nos.1 to 10 are impleaded as defendants in
suit. It is also undisputed fact that in the written statement filed by
Late Shri Leemchand, there was no counter claim and after the death
of Shri Leemchand and after impleaded as defendants being legal
representatives of Late Leemchand, the alleged counter claim has been
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filed by respondent Nos.1 to 10 and thereby they raised objection on
plaintiff's case on various grounds and sought permanent injunction
against the plaintiff/petitioner for not interfering in the suit land in
respect of their possession.
09. The concerning paragraphs which can be said to be as counter
claim is in paragraph No.18 to 24 and the same are reproduced herein
as below:-
";g fd mDr okn esa oknhx.k dh vksj ls ,d vkosnu vkns'k 39
fu;e 1 o 2 lhihlh dk izLrqr fd;k fdUrq izfroknh fyepUnz ds ikl
cVokjs ds nLrkost ugh gksus ls izLrqr ugh dj ldk ftlls] oknhx.k
dk vkosnu Lohdkj gks x;kA
19- ;gfd vLFkkbZ fu"ks/kkKk ds vkns'k es dsoy ;g vkns'k fn;k x;k
Fkk fd okn ds fujkdj.k rd izfrokn fyePkUnz iDdk fuekZ.k dk;Z ugh
djs fdUrq mDr vkns'k dh vkM+ esa oknhx.k ds }kjk oknxzLr Hkwfe es
gLr{ksi fd;k tk jgk gS tcfd izfroknhx.k ds 2 dPps edku vksj 2
iDds edku okn xzLr Hkwfe ij dbZ o"kksZ iwoZ ls cus gqos gSA
20- ;gfd fnukad 14-01-2021 dks oknhx.k us tehu dh ckr dks
ysdj yM+kbZ >xM+k dj xkyh xyksp fd;k vksj Hkwfe ij dCtk djus dh
dksf'kl dh gSA ftldh fjiksVZ izfroknh us pUnz'ks[kj vktkn uxj Fkkus
ij dh gSA
21- ;gfd mDRk vLFkkbZ fu"ks/kkKk dh vkM esa oknhx.k ckj ckj /kedh
ns jgs gS os izfroknhx.k dks oknxzLr Hkwfe ls csn[ky dj dCtk dj ysaxsA
bl dkj.k izfroknh dzekad&1 ds okfjlku~ dks ;g dzkl Dyse izLrqr
djuk vko';d gqvk gSA
22- ;gfd oknhx.k vius mn~ns'; es lQy gks x;s rks izfroknh
dzekad&1 ds okfjlu dks vifjfer gkuh gksxh vksj mls viuh Hkwfe ls
oafpr gksuk iMsaxkA bl dkj.k oknhx.k ds fo:) LFkkbZ fu"ks/kkKk dh
lgk;rk izfroknh dzekad&1 ds okfjlku~ pkgrs gSA
23- ;gfd izfroknh dzekad&1 ds okfjl mDr dzkl Dyse dk
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ewY;kadu 500 :i;s dj U;k;'kqYd :i;s [email protected]& vnk djrs gSA
izfroknh dzekad&1 ds okfjlku us mDr U;k;k'kqYd dh jkf'k :i;s
[email protected]& vkuykbZu dksVZ Qh vkbZ Mh dzekad&[email protected] ds ek/;e
ls vnk dh gSA
24- ;g fd izfroknhx.k fuEu lgk;rk dh vf/k;kpuk oknhx.k ds
fo:) djrs gS fd %&
v- oknhx.k ds fo:) vksj izfroknh dzekad&1 yhepUnz firk
tksfr;k ds okfjlku~ ds i{k esa bl vk'k; dh LFkkbZ fu"ks/kkKk tkjh dh
tkos fd oknhx.k oknxzLr Hkwfe es fdlh izdkj ls gLr{ksi ugh djs vksj
ugh oknxzLr Hkwfe ls izfroknh dzekad&1 yhepUnz firk tksfr;k ds
okfjlku~ dks csn[ky djsA
c- vU; dksbZ lgk;rk tks Jheku~ mfpr le>s og Hkh
izfroknh dzekad&1 ds okfjlku~ dks fnykbZ tkosA
l- bl dzkl Dyse dk O;; Hkh izfroknh dzekad&1 ds
okfjlku~ dks oknhx.k ls fnyk;k tkosA
10. Therefore, it is clear that for cause of action which arose on
14.01.2021, the counter claim has been filed.
11. The Order 8 Rule 6-A(1) of CPC provides that "A defendant in
a suit may, in addition to his right of pleading a set-off under rule 6,
set up, by way of counter claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant
against the plaintiff either before or after the filing of the suit but
before the defendant has delivered his defence or before the time
limited for delivering his defence has expired, whether such counter-
claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary
limits of the jurisdiction of the Court."
12. As per provision of Order 8 Rule 6-A(1), any right or claim of
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which cause of action accrues to defendant against the plaintiff, before
or after filing of suit, but before the defendant has delivered his
defence or before the time limited for delivering his defence has
expired, a counter claim can be filed by the defendant. Undisputedly,
in the case in hand, the counter claim was filed on the cause of action
which arose on 14.01.2021, on the stage of plaintiff's evidence.
Therefore, it is clear that the counter claim filed by the respondent
Nos.1 to 10 is based on the cause of action which arose on 14.01.2021,
which are much after the filing of suit and submission of written
statement by original defendant No.1- Late Shri Leemchand.
13. In case of Ashok Kumar Kalra Vs. Wing Cdr. Surendra
Agnihotri and others, (2020) 2 SCC, 394, Hon'ble Apex Court has
held that Order 8 Rule 6-A CPC does not put an embargo on filing the
counter claim after filing the written statement, rather the restriction is
only with respect to the accrual of the cause of action. In case of Vijay
Prakash Jarath Vs. Tej Prakash Jarath 2016 (11) SCC 800
Hon'ble Apex Court has held that "cause of action in respect of which
counter claim can be filed, should accrue before defendant has
delivered his defence, namely, before defendant has filed a written
statement. Similarly, in case of Amanulla Khan Vs. Zaheer Khan
2001 (1) MPWN 140, this Court has held that "if cause of action arose
after filing of written statement- no counter claim on such cause of
action can be filed."
14. In view of the provisions of Order 8 Rule 6-A of Code of Civil
Procedure and the citations referred herein above and as per the
circumstances of this case, I am of the considered view that the
learned Trial Court has fallen into error by accepting the counter claim
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because the counter claim was filed on the cause of action which arose
on 14.01.2021, much after the filing of suit and submission of written
statement by original defendant No.1- Late Shri Leemchand.
In result to that, the civil revision is allowed and the impugned
order is hereby set aside. However, in the peculiar facts and
circumstances of the case, there shall be no order as to costs.
(AMAR NATH (KESHARWANI))
JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR RAIPURIA
Date: 2022.04.29 19:20:11
+05'30'
