Shyamswaroop Agrawal vs Keshav Premi on 17 March, 2026

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                            IN THE            HIGH COURT OF MADHYA PRADESH
                                                          AT G WA L I O R
                                                                 BEFORE
                                          HON'BLE SHRI JUSTICE ASHISH SHROTI
                                        MISCELLANEOUS PETITION No. 6573 of 2025

                                                   SHYAMSWAROOP AGRAWAL
                                                           Versus
                                                  KESHAV PREMI AND OTHERS


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                          Appearance:
                          Shri Ankur Mody - Advocate for the petitioner.
                          Shri yogesh Singhal- Advocate for respondent no. 1.
                          Shri Shankar Dayal Mishra- Advocate for respondents no. 3 to 8, 12 and
                          13.
                          RESERVED ON:                      05/03/2026
                          ORDER PASSED ON:                    17/03/2026
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                                                                 ORDER

Petitioner has filed this misc. petition challenging the order dated 15/5/2024 passed by First Additional Judge to the Court of First Civil Judge, Senior Division, Guna in Civil Suit No.126-A/2018, whereby, learned trial Court refused to take on record the counter claim filed by him. He has also challenged the order dated 16/9/2025 passed by Sixth District Judge, Guna in MCA No.42/2024, whereby, petitioner's appeal filed under Order XLIII Rule 1(a) CPC has been dismissed.

2. To understand the controversy involved in this case, the facts, in short, are that one Brijlal had three sons, Surajbhan, Mangilal and Babulal. Plaintiffs, Gopal Krishan Premi and Ballabhdas, as also the initial defendants no.1 to 6 are the legal heirs of Shri Surajbhan. Plaintiffs filed a suit for declaration of title and permanent injunction against the initial defendants seeking declaration of their title in respect of a house named as

Premi House (Pahla Padav), Jaistambh Chauraha, A.B. Road, Guna.

3. The defendant no.7 to 15 are the legal heirs of Babulal, who were not initially impleaded as party in the civil suit. They have been impleaded subsequently under Order 1 Rule 10 of CPC. Petitioner- Shyam Swaroop Agrawal is one of the sons of Babulal and is defendant no.8 in the civil suit.

4. The petitioner/defendant no.8 alongwith defendant no.9 filed their written statement alongwith the counter claim on 18/4/2024. Pertinently, the counter claim was in respect of certain properties which are situated at village Ruthiyai, District Guna. In the counter claim, they have prayed for a decree of partition and declaration of title. The plaintiffs filed an application under Order 7 Rule 11 of CPC seeking rejection of the counter claim on the ground that defendant no.8 & 9 have failed to plead specifically the cause of action for filing the counter claim. It is further alleged that counter claim in relation to the property which is situated beyond the territorial jurisdiction of the Court is not maintainable. The defendant no.8 & 9 filed reply to the application and prayed for rejection of the same. They averred that the counter claim is filed in accordance with law.

5. Learned trial Court vide impugned order dated 15/5/2024 (Annexure P/2) allowed the application and rejected the counter claim filed by defendant no.8 & 9. The defendant no.8/petitioner alone challenged the order of learned Trial Court by filing an appeal under Order 43 Rule 1(a) CPC, which also suffered dismissal vide another order dated 16/09/2025. The petitioner has accordingly filed the present misc. petition challenging these two orders passed by learned Trial Court and Appellate Court.

6. Challenging the impugned orders, learned counsel for the petitioner submitted that the Trial Court as well as Appellate Court erred in rejecting the counter claim on the ground that the properties are situated beyond territorial jurisdiction of the Court. It is his submission that in a suit for partition, joint properties of the parties are required to be included even though some of such properties are situated beyond territorial jurisdiction of

the Court. In support of this submission he relied upon the provisions of Section 17 of the CPC. Learned counsel further submitted that the plaintiffs are obliged to include all the joint properties in the suit itself, however, intentionally they did not include the properties which are sought to be included by way of counter claim by the defendants. In support of his submission, learned counsel for the petitioner relied upon the Apex Court decision in the case of Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors. reported in (1996)4 SCC 699, Rajul Manoj Shah alias Rajeshwari Rasiklal Sheth Vs. Kiranbhai Shakrabhai Patel & Anr. reported in 2025 SCC Online SC 1958 (AIR 2025 SC 4284), Smt. Uma Devi & Ors. Vs. Sri Anand Kumar & Ors., {SLP (Civil) No.2137/2025}, Shivnarayan (D)by LRs. Vs. Maniklal (D) by LRs. & Ors, reported in (2020)11 SCC 629, order passed by Bombay High Court in the case of Lakhmichand Rewachand Vs. Kachubhai Gulabchand, (1911 SCC Online Bom. 29) and decision of coordinate Bench of this Court in the case of Ramkishan Patel Vs. Om Prakash Mishra & Ors., (F.A. No.1866/2023).

7. On the other hand, learned counsel appearing for plaintiffs opposed the submissions made by petitioner's counsel. He vehemently argued that the counter claim has been filed by the defendants only to delay the proceedings. It is his submission that plaintiffs evidence is already over in the Trial Court and at this stage, if the counter claim is allowed, the entire proceedings are to be reinitiated from the stage of framing of issues. Learned counsel pointed out that even though the appeal was filed by the defendants in July' 2024, they did not press for stay of proceedings of the suit as a result of which, the proceedings have progressed. Learned counsel further submitted that the properties sought to be included in the counter claim are situated beyond the territorial jurisdiction of the Trial Court and, therefore, the Trial Court as well as the Appellate Court rightly rejected the counter claim. He further submitted that the suit has been filed by the plaintiffs in relation to the house situated at Jaistambh Chauraha, A.B. Road,

Guna. Thus, the properties over which the plaintiffs have not raised any claim would not be subject matter of counter claim. Learned counsel thus prayed for dismissal of the misc. petition.

8. Considered the arguments and perused the record.

9. The centre of discussion in this petition is the Order 8 Rule 6A of CPC, which provides for filing of counter claim. The provision of Order 8 Rule 6A CPC, being relevant is reproduced hereunder:

"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) Such counter-claim shall have the same effect as a cross-

suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."

10. The provision of Order 8 Rule 6A CPC, for filing of counter claim by a defendant, was introduced by way of amendment in CPC in the year 1976. The provision came to be introduced by virtue of which now counter claim can be set up by defendant. Counter claim is in fact a suit, though the same is taken in the written statement. Just as a suit is filed by the plaintiff, defendant seeks a relief against the plaintiff on a cause of action which he has against the plaintiff. It is an independent cause of action which could also be agitated in a separate suit. The purpose of filing counter claim is to

avoid multiplicity of proceedings and therefore, defendant is given liberty to file a counter-claim and get adjudication in the same proceedings. The issues are suggested in both the original claim as well as in the counter- claim, and both are disposed of by a common judgment. Scope of counter claim is in the nature of cross-suit and for all purposes it is to be treated as independent suit. It is provided only for purposes of convenience and for speedy disposal of rival claims in suit as well as counter claim between the parties.

11. Sub-rule (4) of Rule 6A of Order 8 provides and makes it specific that the counter claim shall be treated as a plaint and governed by the rules applicable to plaints. Thus, the counter claim is required to satisfy all the rules which are applicable to plaints which would also include territorial jurisdiction of the Trial Court. Thus when the properties, different then the plaint properties, are made subject matter of counter claim which situates beyond the territorial jurisdiction of the Trial Court, before which the suit is pending, the Trial Court would not have the jurisdiction to adjudicate the counter claim. Reason is simple, the counter claim is required to be tried as a civil suit independent of the suit filed by the plaintiff. Therefore, learned Trial Court is required to have the jurisdiction over the properties which are made subject matter of counter claim.

12. Learned petitioner's counsel pressed into service provisions of Section 17 of the CPC which permits filing of a suit in any of the Courts, if the subject matter of the property of the suit is scattered in jurisdiction of more than one courts. Section 17 CPC reads as under:

"17. Suits for immovable property situate within jurisdiction of different Courts.-Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court."

13. Thus, for attracting provisions of Section 17 CPC, the plaint should contain properties situate within the jurisdiction of different courts. However, as observed above, the counter claim is independent of a plaint, therefore, to attract Section 17, it, in itself, should have properties situate in jurisdiction of more than one courts. The petitioner invokes Section 17 CPC by reading plaint and counter claim together, which in the opinion of this Court, is not permissible. The counter claim is required to satisfy the requirement of Section 17 CPC independent of the plaint.

14. In the case in hand, the suit has been filed in the Court at Guna as the property which is subject matter of suit falls within the jurisdiction of the Guna Court. On the other and, the properties which are made subject matter of counter claim situates in village Ruthiyai which does not fall within the territorial jurisdiction of Court at Guna, and it falls within the territorial jurisdiction of Court at Raghogarh, District Guna. Thus, learned Trial Court as well as Appellate Court are justified in rejecting the counter claim for want of territorial jurisdiction.

15. Apart from the aforesaid, yet another requirement to attract Section 17 CPC is that thecause of action for filing the suit regarding property situated in different jurisdiction is one and the same. The judgment rendered by Apex Court in the case of Shivnarayan v. Maniklal reported in (2020)11 SCC 629, can be profitably referred on this issue. The Apex Court while consideration the scope of Section 17 CPC, held thus:

"21.The point to be noticed is that the permissibility of instituting suit in one court, where properties, which are subject-matter of the suit are situated in jurisdiction of different courts have been permitted with one rider i.e. cause of action for filing the suit regarding property situated in different jurisdiction is one and the same. In a suit when the cause of action for filing the suit is different, the courts have not upheld the jurisdiction of one court to entertain suits pertaining to property situated in different courts. In this context, we need to refer to some judgments of the High Courts as well as of the Privy Council, which have considered the issue.

*** *** *** 34.4.A suit in respect of more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts."

16. It is seen from the pleadings made in plaint that the plaintiffs have not pleaded any cause of action against defendant no.7 to 15 and they have been impleaded subsequently under Order 1 Rule 10 CPC. Further, in counter claim, the defendant no.8 & 9 have not pleaded at all any cause of action. Thus, there is no similarity of cause of action in plaint and counter claim. Section 17 CPC is thus not attracted in the facts of this case.

17. The counter claim filed by defendant no.8 & 9 is required to be rejected also on the ground that it is not clear and specific. It is seen that only the property mentioned at serial no.1 is stated to be situated at Karmakhedi Ruthiyai. However, in relation to properties mentioned at serial no.2 to 5, defendants have not even mentioned their address. Furter, the relief clause 18(अ) claims that half of the property belongs to defendant no.7 to 15, however, counter claim does not speak anything about the remaining half portion. Thus, apparently, the counter claim filed by defendants relates to co-defendants and not to the plaintiffs. Only the relief of permanent injunction prayed for in clause (ब) of para 18 relates to plaintiffs. It is settled legal proposition that a counter claim can be filed by defendant against the plaintiff and not solely against defendants {Rohit Singh v. State of Bihar (2006)12 SCC 734}. It may incidentally claim relief against co-defendant. However, reading of the counter claim reflects that the relief of partition is against co-defendants only.

18. The defendants also failed to plead specifically the cause of action for filing the counter claim which is one of the main ingredient of counter claim.

19. The judgment rendered in the case of Jag Mohan Chawla & Rajul

Manoj Shah (supra), relied upon by petitioner's counsel, does not deal with the issue involved in this case. Rather, it reiterates the same legal position that "counter claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint'. Further, the judgment rendered by Apex Court in the case of Smt. Uma Devi & Ors. (supra) also deals with a different issue under Order 7 rule 11 CPC where the suit was dismissed on the ground of limitation. Likewise, the judgment in the case of Lakhmichand Rewachand (supra) deals with inherent powers of court to add party in a suit. This judgment is also not relevant for decision of this case. The judgment rendered by coordinate bench of this Court in the case of Ramkishan Patel (supra)also does not help the petitioner inasmuch as it deals with the issue that the plaint discloses a cause of action or not is essentially a question of fact which is again not involved in this case.

20. Thus, the orders passed by learned trial Court as also by the Appellate Court are held to be legal and valid warranting no interference by this Court in the present misc. petition. Petition accordingly fails and is hereby dismissed.

(ASHISH SHROTI) JUDGE jps/-