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Rakesh Kumar v/s Suman Sharma

    CMPMO No. 330 of 2015

    Decided On, 22 November 2016

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE P.S. RANA

    For the Petitioner: Ashwani Sharma, Sr. Advocate with Ishan Thakur, Advocate. For the Respondents: R1 to R3, None, R2 to R5, Anup Rattan, Advocate.



Judgment Text

Oral Order:

1. Present petition is filed under Article 227 of Constitution of India against order dated 24.4.2015 passed by learned Civil Judge (Sr. Division) Dehra Distt. Kangra (H.P.) in C.S. No. 174/2012 title Smt. Suman Sharma & Others Vs. Rakesh Kumar & Others whereby learned Trial Court dismissed the application filed by codefendant No.1 under section 151 CPC for excluding counter claim filed by codefendants No.2 to 5 from civil suit No. 174 of 2012.

Brief facts of the case:

2. Smt. Suman Sharma & Others plaintiffs filed civil suit for declaration to the effect that plaintiffs are owners in possession of suit land and entitled to remain in possession of suit land in future also being successors-in-interest of deceased Bansi Lal. It is pleaded that alleged Will dated 9.10.2002 executed by deceased Bansi Lal in favour of co-defendant No.1 Rakesh Kumar is false, frivolous, fictitious and is a result of fraud and undue influence and has no effect on the rights of plaintiffs. It is further pleaded that mutation Nos. 391 and 648 sanctioned and attested on 28.4.2007 are also nu

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l and void and not binding upon the rights of plaintiffs. Consequential relief of perpetual and prohibitory injunction sought restraining the defendants from cutting, felling and removing any type of tree from the suit land and from changing the nature of suit land and from alienating the suit land in any manner. Additional relief of rendition of accounts also sought.3. Per contra written statement filed on behalf of co-defendant No.1 Rakesh Kumar pleaded therein that suit filed by plaintiffs is not maintainable. It is pleaded that suit is time barred. It is further pleaded that plaintiffs have deliberately suppressed material facts from the Court. It is further pleaded that plaintiffs are estopped to file the present suit by their acts, deeds, conduct and acquiescences. It is further pleaded that valuation of suit for purposes of Court fee and jurisdiction not properly mentioned. It is further pleaded that plaint filed by plaintiffs is not verified in accordance with law. It is further pleaded that plaintiffs are daughters and co-defendant No.1 Rakesh Kumar is son of late Sh. Bansi Lal. It is further pleaded that codefendants No.2 to 5 namely C. L. Sharma, Nand Lal, Suresh Kumari and Rajni Devi are sons and daughters of deceased Smt. Shanti Devi who was daughter of Smt. Shanti Devi first wife of deceased Bansi Lal. It is further pleaded that plaintiffs and co-defendant No.1 were born from Smt. Kamla Devi who is second wife of late Sh. Bansi Lal. It is further pleaded that suit property was acquired by deceased Bansi Lal on the basis of gift deed executed by his uncle Sh. Ajudhia Dass and on the basis of Will executed by his father Sohan Lal. It is further pleaded that suit property became self acquired property of deceased Bansi Lal. It is further pleaded that Sh. Bansi Lal has executed registered Will dated 9.10.2002 in favour of co-defendant No.1 Rakesh Kumar. It is further pleaded that co-defendant No.1 after the death of Sh. Bansi Lal on the basis of testamentary document became absolute owner in possession of suit property. It is further pleaded that mutations Nos. 391 and 648 were sanctioned in accordance with law and on the basis of testamentary document i.e. registered Will dated 9.10.2002. It is further pleaded that plaintiffs pleaded mutually contradictory and destructive pleas in the pleadings. It is further pleaded that plaintiffs were married and they are residing in Punjab. It is further pleaded that codefendant No.1 used to look after his old aged father. It is further pleaded that in view of testamentary document in favour of co-defendant No.1 plaintiffs have no legal right, title and interest over suit land. Prayer for dismissal of suit sought.4. Per contra separate written statement filed on behalf of co-defendants No.2 to 5 namely C. L. Sharma, Nand Lal, Suresh Kumari and Rajni Devi pleaded therein that plaintiffs have no cause of action and plaintiffs are etopped from filing the suit by their act and conduct. It is further pleaded that plaintiffs did not approach the Court with clean hands. It is further pleaded that civil suit is collusive between plaintiffs and co-defendant No.1 Rakesh Kumar. It is further pleaded that deceased Bansi Lal died intestate and parties have inherited suit property. It is further pleaded that no Will was executed by deceased Bansi Lal on dated 9.10.2002 in favour of co-defendant No.1 Rakesh Kumar. Prayer for dismissal of suit sought.5. Co-defendants No.2 to 5 namely C. L. Sharma, Nand Lal, Suresh Kumari and Rajni Devi filed counter claim under Order VIII Rule 6-A CPC in civil suit No. 174 of 2012 for declaration that counter claimants alongwith plaintiffs and co-defendant No.1 are owners in possession of suit land on the basis of legal heirs. It is pleaded that suit property is Hindu ancestral and coparcenery property. It is pleaded that parties have right and interest in the property by birth being coparcener. Additional decree of possession by way of partition of land and rendition of accounts also sought by codefendants No.2 to 5 in counter claim. Prayer for decree of counter claim sought.6. Written statement to counter claim filed by plaintiffs pleaded therein that deceased Bansi Lal died intestate. It is further pleaded that deceased Bansi Lal did not execute any Will on dated 9.10.2002 in favour of co-defendant No.1 Rakesh Kumar.7. Co-defendant No.1 Rakesh Kumar filed application under section 151 CPC for excluding counter claim from civil suit No. 174 of 2012 on the ground that counter claim filed by co-defendants No.2 to 5 in C.S. No.174/2012 is not maintainable against co-defendant No.1. It is pleaded by co-defendant No.1 that property of late Sh. Bansi Lal has been inherited by co-defendant No.1 by way of registered Will dated 9.10.2002. It is pleaded that co-defendants No.2 to 5 did not seek any relief against plaintiffs in counter claim. It is pleaded that counter claim be excluded from civil suit No. 174 of 2012.8. Per contra response filed on behalf of co-defendants No.2 to 5 upon application filed under section 151 CPC by co-defendant No.1 pleaded therein that registered Will dated 9.10.2002 is challenged. It is pleaded that codefendants No.2 to 5 have sought relief against plaintiffs as well as codefendant No.1 in counter claim for declaration, possession by way of partition and rendition of accounts. It is pleaded that counter claim is maintainable. Prayer for dismissal of application filed under section 151 CPC sought. Learned Trial Court on dated 24.4.2015 dismissed application filed under section 151 CPC by co-defendant No.1 namely Rakesh Kumar for excluding counter claim from civil suit No. 174 of 2012. Feeling aggrieved against the order dated 24.4.2015 present petition filed under Article 227 of Constitution of India by co-defendant No.1 Sh. Rakesh Kumar.9. Court heard learned Advocate appearing on behalf of petitioner and non-petitioners and Court also perused the entire records carefully.10. Following points arise for determination in the present petition:1) Whether petition filed under Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition?2) Relief.Findings upon point No.1 with reasons:11. Submission of learned Advocate appearing on behalf of codefendant No.1 namely Rakesh Kumar that counter claim filed by codefendants No.2 to 5 under Order VIII Rule 6-A CPC against co-defendant No.1 cannot be filed as per law and same be excluded from civil suit No.174/2012 is decided accordingly. Counter claim under Order VIII Rule 6-A CPC was incorporated in Code of Civil Procedure 1908 w.e.f. 1.2.1977 vide amendment in CPC vide Act 104 of 1976. Order VIII Rule 6-A CPC is quoted:(1) Defendant in a suit may in addition to his right of pleadings can file counter claim against the claim of plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired provided that counter claim should not exceed the pecuniary limits of the jurisdiction of court. (2) Counter claim would have the same effect as a cross suit so as to enable the court to pronounce final judgment in the same suit both on the original claim and on the counter claim. (3) Plaintiff would be at liberty to file written statement in answer to the counter claim of the defendant within such period as may be fixed by the court. (4) Counter claim would be treated as plaint and governed by the rules applicable to plaint. It is well settled law that counter claim is not maintainable if directed solely against other co-defendant. It is well settled law that if counter claim is directed against plaintiff then alongwith it co-defendant can seek relief against other co-defendant also. See 2006(12) SCC 734 Rohit Singh Vs. State of Bihar. See 2010(1) Himachal Law Reporter H.P. High Court 434 Nirmala Devi & Others Vs. Dhian Singh & Others.12. Court has carefully perused the counter claim filed by co-defendants No.2 to 5 under Order VIII Rule 6-A CPC in C.S. No.174/2012. Codefendants No.2 to 5 have sought counter claim for declaration that codefendants No.2 to 5 alongwith plaintiffs and co-defendant No.1 are owners in possession of suit land in equal shares. Co-defendants No.2 to 5 have also sought additional relief in counter claim qua decree for possession by way of partition of suit land against plaintiffs and codefendant No.1. Co-defendants No.2 to 5 have also sought additional relief of rendition of accounts against plaintiffs and co-defendant No.1. Codefendants have impleaded plaintiffs and co-defendant No.1 as party in counter claim.13. It is held that counter claim filed by co-defendants No.2 to 5 under Order VIII Rule 6-A CPC is not solely directed against co-defendant No.1 but is also directed against plaintiffs. It is held that co-defendants No. 2 to 5 have sought relief against co-defendant No.1 alongwith plaintiffs. It is held that Suman Sharma, Santosh Sharma, Tripta Sharma and Rakesh Kumar would get adequate opportunity to contest counter claim in accordance with law. In view of the fact that counter claim filed under Order VIII Rule 6-A CPC is not solely filed against co-defendant No.1 namely Rakesh Kumar but is also filed against plaintiffs namely Suman Sharma, Santosh Sharma and Tripta Sharma it is held that in view of ruling cited supra order of learned Trial Court is not illegal. It is held that no interference is warranted. Point No.1 is answered in negative.Point No.2 (Final Order).14. In view of findings upon point No.1 present petition filed under Article 227 of Constitution of India is dismissed. Parties are directed to appear before learned Trial Court on 15.12.2016. Observations will not effect merits of the case in any manner. File of learned Trial Court alongwith certified copy of the order be sent back forthwith. CMPMO No. 330/2015 is disposed of. Pending application(s) if any also disposed of.
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