Orissa High Court
Debi Prasanna Pattanaik (Since ... vs Amulya Prasad Nayak on 9 November, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 90 OF 2018
(An application under Articles 226 & 227 of the
Constitution of India)
*****
Debi Prasanna Pattanaik (since dead)
through his L.Rs Dibya Ranjan Pattnaik
and Others
...... Petitioners
-Versus-
Amulya Prasad Nayak
....... Opp. Party
Advocates appeared:
For Petitioners : Mr. S.K. Dey, Advocate
For Opp. Party : Mr. Niranjan Prasad Patra,
Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
---------------------------------------------
Heard and disposed of on 07.11.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 16th December, 2017 (Annexure-3) passed
by learned 4th Additional Civil Judge (Senior Division), Cuttack
in C.S. No.652 of 2013 is under challenge in this CMP, whereby
an application filed by the Plaintiffs-Petitioners under Order VIII
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
Rule 6-C CPC to exclude the counter-claim filed by the
Defendant-Opposite Party, has been rejected.
3. Mr. Dey, learned counsel for the Petitioner submits that
the suit has been filed for eviction of the Defendant-Opposite
Party. On appearance, the Defendant filed his written statement
along with the counter-claim seeking for partition of Schedule-A
property claiming 1/3rd share in the same and to declare him as
the adopted son of Bhajakrushna Pattanaik and Harapriya
Pattanaik. The counter-claim was admitted on 13th April, 2017
by learned trial Court. Subsequently, the Plaintiffs filed an
application under Order VIII Rule 6-C CPC to exclude the
counter-claim. Vide order dated 16th December, 2017
(Annexure-3), learned trial Court dismissed such application.
Hence, this CMP has been filed.
4. Mr. Dey, learned counsel for the Petitioners submits that
the relief claimed in the counter-claim does not relate to the suit
property. Hence, the same does not come under the purview of
Order VIII Rule 6-A CPC. As such, learned trial Court
committed an error of law in refusing to exclude the counter-
claim filed by the Defendant-Opposite Party.
5. It is submitted that the suit has been filed for eviction of
the Defendant from 'B' Schedule property, i.e., two rooms of the
ground floor of the double storied building standing over
Schedule-A property. But, the Defendant has claimed partition
of the entire Schedule-A property. Further the Defendant has
claimed for a declaration that he is the adopted son of
Bhajakrushna Pattanaik and Harapriya Pattanaik. Such a prayer
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
is beyond the purview of the claim made in the plaint. These
material aspects were lost sight of by learned trial Court while
adjudicating the petition. Hence, he prays for setting aside the
impugned order under Annexure-3.
6. In support of his case, Mr. Dey, learned counsel for the
Petitioners relied upon the case of Satyender and others -v-
Saroj and others, reported in 2022 SCC OnLine SC 1026,
wherein it is held as under:
"18. xxx xxx xxx
[6A. Counter-claim by defendant-
xxx xxx xxx
(4) The counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints
19. A counter claim can be set up only "against the
claim of the plaintiffs". Since there was no claim of the
plaintiffs regarding Killa No. 6//8 and 23, the
defendants were barred to raise any counter claim on
these Killa numbers in view of Order VIII, Rule 6A of
the CPC as it has nothing to do with the plaintiffs. It is
true that a counter claim can be made by the defendant,
even on a separate or independent cause of action (Jag
Mohan Chawla v. Dera Radha Swami Satsang)."
7. Learned trial Court while adjudicating the matter, relied
upon the decision in the case of Datta Bandu Sadale and others
-v- Sridhar Payagonda Patil and others, reported in AIR 1992
Bombay 422, which has no application to the case at hand.
Hence, he prays for setting aside the impugned order under
Annexure-3 and to exclude the counter claim filed by the
Defendant.
8. Mr. Patra, learned counsel for the Opposite Party submits
that the counter-claim has been admitted since 13th April, 2017
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
and the petition to exclude the counter-claim was filed belatedly.
At the time of admission of the counter-claim, the Plaintiffs had
not raised any objection. But, subsequently, an application
under Order VIII Rule 6-C CPC was filed to exclude the
counter-claim on the ground that the relief claimed therein is not
the subject matter of dispute in the suit. It is his submission that
the Defendant has only claimed for partition of Schedule-A
property, which is also Schedule-A in the plaint. In order to get
the relief of partition suit property claiming 1/3rd share in it, the
Defendant sought for a relief to declare him as the adopted son
of the father of the Plaintiffs. Thus, it cannot be said that the
relief claimed in the counter-claim is not the subject matter of
dispute in the suit.
9. Mr. Patra, learned counsel for the Opposite Party further
distinguishes the applicability of the ratio in the case of
Satyender and others (supra) submitting that in the said case,
the counter-claim was filed in respect of plots those were not the
subject matter of dispute in the suit. The same is not the case in
the present counter-claim. Schedule-A of both the plaint and
counter-claim are one and the same. The claim to declare the
Defendant as the adopted son of Bhajakrushna Pattanaik and
Harapriya Pattanaik is necessary to claim for partition. Since it
is an ancillary relief claimed, learned trial Court has committed
no error in rejecting the petition under Order VIII Rule 6-C
CPC. Hence, he prays for dismissal of the CMP.
10. Heard learned counsel for the parties. Perused the
materials on record and case law cited.
Signature Not Verified // 5 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
11. From the averment made in the plaint and the prayer
made therein, it is abundantly clear that the Plaintiff (being dead
substituted by his legal heirs, namely the Petitioners) has only
claimed for eviction of the Defendant from Schedule-B property,
i.e., two rooms consisting of kitchen, Latrine/Bathroom in the
ground floor of the double storied building standing on
Schedule-A land. Although Schedule-A land in both the plaint
and counter-claim are one and the same, but the Plaintiffs have
claimed eviction of the Defendant in respect of two rooms only
which is, more fully, described in Schedule-B property of the
plaint. Thus, the claim for partition of the Defendant in respect
of entire Schedule-A property in the counter-claim is beyond the
claim in the suit and hence, not maintainable.
12. Further the status of the Defendant is not the subject
matter of dispute in the suit. Thus, the prayer in the counter-
claim to declare him as the adopted son of Bhajakrushna
Pattanaik and Harapriya Pattanaik is not maintainable. In view
of the above, the ratio decided in the case of Datta Bandu
Sadale and others (supra) is of no assistance to the Petitioner.
The ratio decided in the case of Satyender and others (supra)
squarely applies to the case at hand. These material aspects
were not taken into consideration by learned trial Court while
adjudicating the petition under Order VIII Rule 6-C CPC.
13. In that view of the matter, the impugned order under
Annexure-3 is not sustainable and is accordingly set aside. The
counter-claim filed by the Defendant stands excluded. However,
exclusion of the counter-claim shall not be a bar for the
Signature Not Verified // 6 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 09-Nov-2023 16:20:42
Defendant to claim the relief made therein by filing a separate
suit, if it is otherwise permissible in law.
14. The CMP is allowed to the aforesaid extent.
15. Interim order dated 16th March, 2018 passed in Misc.
Case No.101 of 2018 stands vacated.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 7th November, 2023/Madhu
