Krishna Kumar Sinha And Anr vs Smt. Seema Kumari And Ors
2024 Latest Caselaw 3904 Patna

Patna High Court

Krishna Kumar Sinha And Anr vs Smt. Seema Kumari And Ors on 12 June, 2024

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

     IN THE HIGH COURT OF JUDICATURE AT PATNA
    CIVIL MISCELLANEOUS JURISDICTION No.1369 of 2017
======================================================

1.    Krishna Kumar Sinha, S/o Late Shyam Bihari Lal.
2.    Smt. Sunita Sinha, W/o Shri Krishna Kumar Sinha
      Both residents of village Chandaura, P.O- Oina Via Kako, P.S. Kako,
      District Jehanabad.
      At present residing at Mohalla Shri Ram Colony, P.O. Begampur, P.S.
      Chowk, District Patna, Patna-800009.

                                                             ... ... Petitioner/s
                                    Versus

1.    Smt. Seema Kumari, D/o Late Shyam Bihari Lal and W/o Shri Anuj
      Kumar @ Anoop Kumar Verma.
2.    Shri Anuj Kumar Verma @ Anoop Kumar Verma, S/o Shri Bharat Lal.
      Both residents of village Bisai Bigaha, P.S. Ekanger Sarai, P.O-
      Nischalganj, Dist.- Nalanda.
3.    Shri Brijdeo Prasad, S/o- Kamala Lal, C/o-Shri Arjun Prasad Master,
      Gurhatta, P.S.- Khajekalan, P.O Jhauganj Patnacity, Dist.-Patna.
4.    Shri Basant Yadav, S/O Shri Rajdeo Prasad Yadav, resident of Ranipur,
      P.O.- Jhauganj, P.S. Mehdiganj, Patna City, Dist.-Patna.

                                          ... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s   :       Mr. Ashok Nandan Prasad, Advocate
For the Respondent/s   :       Mrs. Mohini Kumari, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
 Date : 12-06-2024

             Heard learned counsel for the petitioners as well as

 learned counsel for the respondents on the point of admission

 and I intend to dispose of the present petition at the stage of

 admission itself.

             2. The instant petition has been filed by the petitioners

 under Article 227 of the Constitution of India for setting aside

 the order dated 29.02.2016 passed by the learned Sub Judge-III,
 Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024
                                            2/14




         Patna in Title Suit No. 337 of 2010.

                      3. Briefly stated, the facts, as it emerges from the

         record, are that the petitioners as plaintiffs filed Title Suit No.

         337 of 2010 are seeking declaration that plaintiffs are joint

         owners in possession of the suit properties and for further

         declaration that gift deed dated 21.10.1994 purportedly executed

         by plaintiff no.1 in favour of defendant no.1/respondent no.1

         (for convenience I will refer him as defendant no.1) is forged,

         fabricated, void ab initio and inoperative besides seeking other

         reliefs. The suit was filed by the plaintiffs claiming that the suit

         properties         are       self-acquired      properties   of   the

         plaintiffs/petitioners through the registered sale deed dated

         06.07.1994

and these properties are situated within Patna

District. Defendant no.1 appeared and filed her written

statement-cum-counter claim and defendant nos. 2 to 4/

respondent nos. 2 to 4 filed their own written statement.

Defendant no.1 sought partition of properties of Jehanabad

District as mentioned in Schedule-I of the counter claim

submitting that the said property was exclusively purchased

properties of mother of the defendant no.1. Thereafter, the

petitioners filed objection petition dated 04.06.2012 challenging

the maintainability of the counter claim of defendant no.1 who Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

filed rejoinder dated 25.06.2012 to the said petition. After

hearing the parties, the learned trial court rejected the petition

dated 04.06.2012 filed by the plaintiffs/petitioners vide the

impugned order dated 29.02.2016. Thereafter, the

plaintiffs/petitioners filed another petition dated 06.05.2016

under Order 47 Rule 1 and 2 of the Code of Civil Procedure

(hereinafter referred to as 'the Code') for review of the order

dated 29.02.2016. A reply was filed by the defendants to the said

review petition and after hearing the parties, learned trial court

rejected the review petition of the plaintiffs/petitioners vide

order dated 24.04.2017. Thus, the impugned order remained

unaltered and, hence, the present petition.

4. Learned counsel appearing on behalf of the

petitioners submitted that the learned trial court has illegally

accepted the counter claim of the defendant no.1 which is filed

for partition in respect of property situated in the jurisdiction of

Jehanabad District and the counter claim is for partition in

respect of those properties whereas different issues are involved

in Title Suit No. 337 of 2010 which is in respect of properties

situated in the jurisdiction of Patna District and the suit is for

declaration and injunction. Learned counsel further submitted

that the learned trial court committed an error as it failed to Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

appreciate that the counter claim is having different cause of

action. Further the learned trial court did not appreciate that the

properties under counter claim were the exclusively purchased

property of mother of the plaintiff no.1/petitioner no.1 and the

defendant no.1 as the same were purchased through the

registered sale deeds dated 05.06.1954 and 03.12.1957. The

mother of the petitioner no.1 partitioned the properties

mentioned in Schedule-I of the counter claim between her two

sons, namely, Krishna Kumar Sinha and Sanjay Kumar Sinha

through a memorandum of partition dated

17.06.2002/18.06.2002 during her lifetime and both her sons

came in possession over their allotted shares. The said

memorandum of partition is duly signed by the mother Sushila

Devi and her two sons Krishna Kumar Sinha and Sanjay Kumar

Sinha and two daughters of Sushila Devi, namely Radha Devi

and Pushpa Devi, and also by Mukhiya of Panchayat and elder

brother of Mukhiya, namely, Arjun Prasad and one Surendra

Prasad as witnesses. Learned counsel further submitted that

there was no good relationship between Sushila Devi and her

daughter Seema Kumari, who is the defendant no.1. Learned

counsel further submitted that when the property of counter

claim has already been partitioned by mother of the petitioner Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

no.1 and respondent no.1 in the year 2002 during her lifetime,

the same cannot be partitioned again. Learned counsel further

submitted that the learned trial court passed the impugned order

against the principles laid down by the Hon'ble Apex Court in

the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra

Agnihotri & Ors., reported in (2020) 2 SCC 394, in which it has

been held that only in case of similarity of cause of action of

plaint and counter claim, the counter claim can be allowed. In

case of dissimilarity of cause of action, the counter claim can

not be allowed as per the mandate of Order VIII Rule 6 C of the

Code. Learned counsel further submitted that the

defendants/respondents brought into existence forged and

fabricated gift deed dated 21.10.1994 purported to have been

executed by plaintiff no.1/petitioner no.1 in favour of defendant

no.1 in respect of 3 decimal of land of C.S. Plot No. 2833

having Khata No. 1239. Against this fabricated gift deed, the

plaintiffs/petitioners have filed a suit for declaration with prayer

to declare the said gift deed forged, fabricated, void ab initio and

inoperative and has sought declaration that the plaintiffs are the

lawful joint owners in possession of the property. At the same

time, this property is situated in Patna District. However, in the

counter claim a decree for partition has been sought by the Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

defendant no.1 seeking carving out her 1/5 share in Schedule 1

property of the written statement apart from 1/6 share in Lot

No.II of the plaint. Learned counsel further submitted that the

properties in which 1/5 share is being claimed are all situated in

Jehanabad District and partition is being sought for the said

properties and, hence, there is no similarity of cause of action.

Learned counsel further submitted that for the very reason, the

claim raised by defendant no.1 could not be disposed of in a

counter claim but in an independent suit and these facts were

not taken into consideration by the learned trial court. Learned

counsel reiterated that the issue involved in the present suit is

very limited and the defendant no.1 has no right to make any

claim of partition in respect of the self-acquired properties of

their mother which has already been partitioned. Therefore, the

impugned order is illegal, arbitrary and passed without

appreciating the law and the issue involved in the matter and,

hence, the said order is fit to be set aside.

5. Per contra, learned counsel appearing on behalf of

the respondents submitted that the impugned order is quite legal

and there is no infirmity in it. Learned counsel further submitted

that the respondent no.1 is the full sister of petitioner no.1.

Learned counsel further submitted that apart from petitioner Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

no.1 and respondent no.1, there are one more brother and two

sisters in the family of the parties. Petitioner no.1 being the

Karta and Manager of the family had executed and registered

the gift deed dated 21.10.1994 in favour of respondent no.1 with

consent and approval of all the family members and, thus 3

decimal land of Plot No. 2833 had been gifted by petitioner no.1

and accepted by respondent no.1 and remaining 3.2 decimal of

land had been retained by petitioner no.1. The respondent no.1

came into possession of her gifted property. In course of time, as

the respondent no.1 was in need of money, she transferred the

land vide Sale Deed No. 4336 dated 28.07.2010 to respondent

no.4 who got the land mutated in his name and started paying

rent to the State of Bihar and rent receipts are being issued in his

name. As the petitioners came to know about the transfer of the

said land, under some wrong advise, they filed the suit for

declaration the gift deed dated 21.10.1994 as forged, fabricated

and not executed by him. Learned counsel further submitted that

the counter claim cannot be rejected on the ground that

properties are situated outside the jurisdiction of Patna as a part

of land for which partition has been sought is within the

territorial jurisdiction of the court at Patna. Section 17 of the

Code provides for such eventuality when the suit properties are Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

situated within the jurisdiction of the different courts. Since

counter claim is to be treated as a plaint and these properties are

within jurisdiction of two or more courts, as the plaintiff has

filed the suit before this Court for properties situated within the

jurisdiction of Patna District, if counter claim is filed on behalf

of the defendants, notwithstanding the fact that the properties in

which partition is being sought is within the jurisdiction of

Jehanabad District, the court at Patna will have jurisdiction.

Learned counsel further submitted that the plea of dissimilarity

of cause of action will not help the cause of action of the

petitioners since in the counter claim the defendant can make

any claim with regard to any right against the plaintiff.

Therefore, there is no infirmity in the order of the learned trial

court and the same needs to be sustained and affirmed.

6. I have given my thoughtful consideration to the

rival submissions of the parties. Order VIII Rule 6A of the Code

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 Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

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."

7. Bare perusal of the provision shows a defendant

can set up any right or claim in respect of a cause of action by

way of counter claim against the claim of the plaintiff. In the

present case, the plaintiffs/petitioners have sought the relief of

declaration as joint owners in possession of the suit property

detailed in Lot I and Lot II of Schedule A and for further

declaration against sale deed dated 28.07.2010 purportedly

executed by the petitioner no.1 in favour of respondent no.1 and

the subject matter of the gift deed is land of Lot No. I of

Schedule 1 having area of 3 decimal of C.S. Plot No. 2833, Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

Khata No. 1239. There is no further claim of

plaintiffs/petitioners against the land mentioned in the counter

claim. Since the plaintiffs have not further claimed any right

over the property as mentioned by the defendant no.1 in her

counter claim and the same is not even part of the suit property

described in the plaint by the plaintiffs, allowing the counter

claim to sustain in such situation would be in teeth of the

provisions under Order VIII Rule 6C of the Code which reads as

under:-

"6C. Exclusion of counter-claim.- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter- claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit."

8. Hence, any dispute in these circumstances is

required to be agitated in an independent suit and not in a

counter claim as the plaintiffs have not claimed the right over

the property of the counter claim. In this regard, the decision of

the Hon'ble Supreme Court in the of Satyender & Ors. Vs.

Saroj & Ors., reported in 2022 SCC OnLine SC 1026, Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

paragraph nos. 19 and 20 could be referred advantageously.

Paragraph nos. 19 and 20 read as under:-

"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 & Anr. v. Dera Radha Swami Satsang & Ors.6).

20. The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the counter claim was not against the plaintiffs. Moreover, as the plaintiffs had not claimed any right over the property and the Killa Nos. 6//8 and 23 are not even a part of the suit property described in the plaint by the plaintiffs. Despite the same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record any reply Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the counter claim set up by the defendants has been rightly rejected by the High Court."

9. On this aspect, I find merit in the submission of

learned counsel for the petitioners and the reliance placed on the

three Judge Bench decision of the Hon'ble Supreme Court in the

case of Ashok Kumar Kalra (supra) on the point of dissimilarity

of cause of action between the main suit and the counter claim.

10. In the case of Ashok Kumar Kalra (supra), the

Hon'ble Supreme Court observed that even if a counter claim is

filed within the limitation period, the trial court has to exercise

its discretion to balance between the right to speedy trial and

right to filing counter claim so that the substantive justice is not

defeated. The discretion vested with the trial court to ascertain

the maintainability of the counter claim is limited by various

considerations based on the facts and circumstances of each

case. In Ashok Kumar Kalra (supra), the Hon'ble Supreme

Court further held that Order VIII Rule 6A of the Code does not

give absolute right to the defendant to file the counter claim

with substantive delay, even if limitation prescribed has not

elapsed and summed up its findings in paragraph no.21 which Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

reads as under:-

"21. We sum up our findings, that Order VIII Rule 6A of the Code does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

i. Period of delay.

ii. Prescribed limitation period for the cause of action pleaded.

iii. Reason for the delay.

iv. Defendant's assertion of his right. v. Similarity of cause of action between the main suit and the counterclaim.

vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. and facts and circumstances of each case. x. In any case, not after framing of the issues."

(Underline supplied for emphasis)

11. In the light of discussion made hereinbefore and in

view of the dissimilarity of cause of action between the main

suit and the counter claim and the counter claim apparently Patna High Court C.Misc. No.1369 of 2017 dt.12-06-2024

running counter to the provisions of Order VIII Rule 6C of the

Code, I am of the considered opinion that the learned trial court

has committed an error of jurisdiction when it rejected the

objections of the petitioners against the maintainability of the

counter claim and, hence, the impugned order dated 29.02.2016

passed by the learned Sub Judge-III, Patna in Title Suit No. 337

of 2010 is not sustainable and the same is set aside.

12. Accordingly, the instant civil miscellaneous

petition stands allowed.

(Arun Kumar Jha, J) balmukund/-

AFR/NAFR                AFR
CAV DATE                07.05.2024
Uploading Date          12.06.2024
Transmission Date       NA