Deepak Goyal vs Municipal Corporation Thr.
2022 Latest Caselaw 1625 MP

                                      1
        The High Court Of Madhya Pradesh
                  CR No. 140 of 2020
              (DEEPAK GOYAL Vs MUNICIPAL CORPORATION THR. AND OTHERS)

Gwalior, Dated : 04-02-2022
       Heard through Video Conferencing.

       Shri K.S. Tomar, learned Senior counsel with Shri Sanjay Tomar,
learned counsel for the petitioner.
       Shri Rohit Bansal, learned counsel for the respondent no.1.

Shri Vivek Khedkar, learned counsel for the respondent no.6 to 9 and legal heirs of the respondent no.4.

This revision petition has been filed against the order dated 3.3.2020 passed in RCS No.28A/2016 by XVI Civil Judge Class II, Gwalior, whereby the application filed by the petitioner/plaintiff under Order 7 Rule 11 CPC has been dismissed.

The relevant facts for disposal of this revision are that the petitioner/plaintiff filed a civil suit initially against Municipal Corporation, Gwalior defendant no.1 and defendant no.2 to 5 (respondents no.2 to 5 herein) for declaration and injunction on the basis of easementary right. The defendants no.2 to 5 filed their written statement denying the averments of

the plaint. During pendency of the civil suit, the defendants no.2 to 5 sold the property to the defendants no.6 to 8, who on their impleadment filed their written statement along with the counter claim seeking declaration and mandatory injunction. The plaintiff filed an application under Order 7 Rule 11 of CPC seeking rejection of the counter claim which came to be dismissed vide impugned order. Being aggrieved thereof this revision petition has been filed by the plaintiff.

Heard learned counsel for the parties and perused the material available on record.

Shri K.S. Tomar, learned Senior counsel with Shri Sanjay Tomar for the petitioner submits that the purchaser cannot claim better right than what his predecessor-in-title has. In this case the defendant no.2 to 5 did not opt

to file any counter claim along with their written statement. The respondent- defendants no.6 to 8 who have stepped into the shoes of defendant no.2 to 5 are bound by the stand taken by their vendors. Thus, the counter claim filed by them is not tenable. Once the defendants no.2 to 5 have disclosed their defence by filing written statement, the subsequent purchaser i.e. respondents no.6 to 8 cannot be permitted to file counter claim under Order

8 Rule 6A of CPC. The learned Trial Court has not rightly considered the relevant aspects of the matter. The impugned order suffers with patent illegality which deserves to be quashed and set aside. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mahabir Gope and others Vs. Harbans Narain Singh and others, AIR 1952 SC 205, Asa ram and another Vs. Mst. Ram Kali and another, AIR 1958 SC 183 and in the case of Sudershan Tiwari and another Vs. Prasad Tiwari and others, 2017 (4) M.P.L.J. 98.

Per contra Shri Vivek Khedkar, learned counsel for the defendants no.6 to 8 has submitted that no ground whatsoever is available to the plaintiff to get the counter claim rejected under Order 7 Rule 11 of CPC. He has further submitted that, being bonafide purchaser, the defendants no.6 to 8 have filed their written statement along with counter claim which is not contrary to the stand taken by their vendors i.e. defendants no.2 to 5. The counter claim has been filed before settling the issues in the matter. The plaintiff has filed reply/written statement to the counter claim so filed by them. The defendants have duly valued the counter claim and court fees has been paid accordingly. The counter claim can very well be filed even after filing of written statement. The revision deserves to be dismissed. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ashok Kumar Kalra Vs. Wing Cdr. Surendra Agnihotri and others, (2020) 2 SCC 394.

Heard. Considered.

Order 8 Rule 6A of CPC deals with counter claim by defendants

which reads as under:

"6A. Counter-claim by defendant- (1) 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.

      (2)        xxx     xxx        xxx

      (3)        xxx     xxx        xxx
      (4)        xxx     xxx        xxx"

The Hon'ble Supreme Court in Ashok Kumar Kalra (supra) has categorically held that the counter claim can be filed even after filing of the written statement.

On consideration of the matter in light of the above-mentioned legal position, it is found that the defendants no.2 to 5 have not filed any counter claim along with their written statement, but in view of the above legal position they have got every right to file counter claim subsequent to filing of their written statement. Such right of filing of counter claim after written statement would obviously be available to the defendants no.6 to 8 being purchaser of the property. Thus, this contention is not sustainable that once the defendants no.2 to 5 did not opt to file counter claim the subsequent purchaser will be debarred from filing the same. The legal position as expounded in the judgments cited on behalf of the petitioner is not disputed that the purchaser cannot get more or better rights than the vendor, but in this case it is not so that the defendants no.6 to 8 have exercised more or better rights than their purchaser/vendor possessed. Indisputably, the counter claim in question has been filed along with the written statement before

framing of issues. The counter claim has been duly valued and court fees has been paid accordingly. Thus, this court is of the considered view that learned Trial Court has rightly considered all the aspects of the matter and has not committed any illegality or perversity while passing the impugned order.

Consequently, the petition is dismissed being devoid of any merit.

(SATISH KUMAR SHARMA) JUDGE

Pawar ASHISH PAWAR 2022.02.05 11:38:08 +05'30'