Biradari Luharan (Multani) Welfare Trust vs Abdul Rashid And Others

Sri Arvind Srivastava and Sri Mukhtar Alam have filed Vakalatnama on behalf of respondent no.3 and 4. It is informed by learned Counsels for the respondents that respondent no.1 had expired in the year 2011. Sri Manoj Kumar Gautam had put in appearance for all the respondents by filing caveat but he was not present in the Court at the time of hearing.

The order dated 25.2.2017 and 30.9.2015 passed by the Additional District and Sessions Judge, Nagina, District Bijnor and the Civil Judge (J.D.), Nagina, District Bijnor; respectively are under challenge.

An Original Suit No.498 of 2009 (Biradari Luharan (Multani) Welfare Trust Vs. Abdul Rashid and others ) was filed by the petitioner with the relief of permanent injunction against the defendant with regard to the plot no.358, area 0.0250 hectares situated in Village Chatarbhojpur, Pargana and Tehsil Nagina, District Bijnor. In the said suit, a written statement along with the counter claim was filed by the defendant on 15.7.2009. An application for withdrawal of suit namely Paper No.40 Ga was filed by the plaintiff on 29.5.2009. An objection was taken by the defendant to the withdrawal application with the assertion that the counter claim was pending consideration and there was no question of withdrawal of suit on the ground of formal defect. The withdrawal application, however, was allowed on 3.09.2009. An application for recall of the order of withdrawal of the suit was moved by the defendant with the assertion that he wanted to pursue his counter claim. While passing the order dated 3.9.2009 for withdrawal of the suit, no order had been passed on the counter claim of the defendant.

The said application of the defendant was allowed vide order dated 9.9.2009, the Original Suit No.498 of 2009 was restored to the extent that the counter claim of the defendant would proceed, the notice was, therefore, issued to the plaintiff. A revision was filed against the order dated 30.9.2015, by the plaintiff. The revisional Court dismissed the revision with the categorical finding that the counter claim should be treated as a separate suit and even if, the plaintiff withdrew his suit, the defendant could pursue his counter claim as an independent suit against the plaintiffs.

Challenging the aforesaid orders, the contention of learned Counsel for the petitioner is that the counter claim though was filed by the defendant on 15.7.2009 but it was never registered as a plaint. Mere pendency of the counter claim that too when it was filed after the withdrawal application moved by the plaintiff, could not be a reason to restore the suit. The plaintiff is dominus litis and it is always the prerogative of the plaintiff whether he wants to pursue his suit. There was no justification for the Court below to recall the order of withdrawal of the suit. With reference to Order 8 Rule 6-A, it is vehemently argued by learned Counsel for the petitioner that the counter claim having effect of cross-suit, was required to be instituted separately by following the procedure for presentation of the plaint. As no such procedure had been followed and the counter claim was not registered separately before withdrawal of the suit, it cannot proceed now.

This submission of learned Counsel for the petitioner is found misconceived from the simple reading of the provisions of Order 8 Rule 6 A which provides that the counter claim can be filed by the defendant to claim any right against the plaintiff in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit. However, the defendant can present the said claim before delivering his defence or before the time limited for delivering his defence has expired.

In the instant case, the counter claim had been filed along with the written statement at the very first opportunity by the defendant. Simultaneously, objection was taken to the withdrawal application with the plea that the counter claim of the defendant may not be affected by withdrawal of the suit. The Court below failed to consider this plea and had thus erred in allowing the withdrawal application without passing any order on the counter claim of the defendant. The said mistake had been rectified with the order to proceed the counter claim by restoration of the suit on the prayer of the defendant.

As there cannot be any dispute that the counter claim can be treated as a cross suit, mere non-registration of it separately before withdrawal of the suit by the plaintiff would be of no consequence. The order of restoration, to register and proceed the counter-claim cannot be faulted with.

The present petition is, accordingly, dismissed.