Kamlesh Gupta And Others vs Bholanath And Others

This petition under Article 227 of the Constitution of India has been filed against the order dated 17.07.2019 (wrongly mentioned in the writ petition as 07.08.2019) passed by 12th Civil Judge, Class-I, Gwalior in Civil Suit No. 188-A/2009, by which the application filed by the petitioners / defendants No. 1 and 3 under Order 8 Rule A and C read with Section 151 of CPC has been rejected. The order dated 08.02.2016 has also been challenged, by which the Trial Court had allowed the application under Order 6 Rule 17 of CPC while rejecting the objection raised by the petitioner about the maintainability of counter claim. Although two orders have been challenged by the petitioners but they have paid only one set of Court fee and has filed one consolidated petition.

Accordingly, the petitioner is directed to pay the second set of Court fee.

The necessary facts for disposal of the present petition in short are that the respondent has filed a suit for declaration of title, rendition of account and permanent injunction. It is the case of the plaintiff that the property in dispute belongs to Jagannath Gupta (father of the plaintiff), therefore, he has 1/3rd share in the same, but Smt. Maya Devi (mother of the plaintiff) has executed the sale deed in favour of defendants No. 1 to 3 and the said sale deed is without any right or authority and, therefore, the suit was filed for declaration that the plaintiff has 1/3rd share in the suit property and the defendants No. 1 to 3 should file the accounts of the income as well as rent derived from the said suit property and the 1/3rd share of the same may be given to the plaintiff as well as for mandatory injunction that the defendants No. 1 to 3 must specifically disclose the income from the suit property and should not create any hindrance in right of the petitioner to receive 1/3rd share in the same. It was further pleaded that defendants No. 1 to 3 be restrained from alienating the property.

It appears that the plaint was amended and it was also prayed that the sale deed dated 23.04.1988 executed in favour of the defendants No. 1 to 3 and the partition deed dated 27.08.1997 which had taken place between the defendants No. 1 to 3 as well as the sale deed dated 20.02.2001 are null and void to the extent of the plaintiff.

The defendant No. 4 filed his written statement and, thereafter, filed an application under Order 6 Rule 17 of CPC to incorporate the counter claim and prayed that the defendant No. 4 may be declared as the owner of the entire property by virtue of Will dated 09.03.1994 executed by Smt. Maya Devi as well as for declaration that the sale deed dated 23.04.1988 executed in favour of the defendants No. 1 to 3 as well as the partition amongst them dated 27.08.1997 and sale deed dated 20.02.2001 are null and void and is not binding. It appears that this application was objected by the petitioners. However, by order dated 08.02.2016, the objections raised by the petitioners were rejected and the application filed under Order 6 Rule 17 of CPC was allowed. It was also considered by the Trial Court that where the counterclaim is primarily against the plaintiff, then defendant can also make incidental claim against the co-defendant and relied upon the judgment passed by this Court in the case of Om Prakash Malviya Vs. Shambhu Nath Singh and others reported in ILR 2009 MP 3449. It appears that the petitioners did not challenge this order and, thereafter, filed an application under Order 8 Rule A and C read with Section 151 of CPC.

Similar objection was raised to the effect that the defendant cannot file a counterclaim against co-defendant.

The Trial Court by the impugned order dated 17.07.2019 has rejected the application and has held that in fact, the objection raised by the petitioner has already been adjudicated by the Trial Court by order dated 08.02.2016 and the said order has remained unchallenged, therefore, the subsequent application raising same objection is not maintainable.

Heard the learned counsel for the petitioners.

The petitioners have raised an objection that since the defendant No. 4 has filed counterclaim against co-defendant, therefore, counterclaim filed by defendant No. 4 is not maintainable.

The Supreme Court in the case of Rohit Singh and others Vs. State of Bihar reported in AIR 2007 SC 10 has held as under:-

"18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit..........."

If the facts of the case are considered in the light of the judgment passed by the Supreme Court in the case of Rohit Singh (supra), then it is clear that the objection with regard to the maintainability of the counterclaim filed by the defendant No. 4 was already decided by the Trial Court by order dated 08.02.2016 and the said order remained unchallenged and now the said order has been put to challenge in this writ petition. Undisputedly, when the impugned order dated 17.07.2019 was passed, the order dated 08.02.2016 had remained unchallenged, therefore, the order dated 08.02.2016 was binding on the Trial Court as the principle of res judicata also applies to the interlocutory proceeding.

However, in the present petition, the petitioner has also challenged the order dated 08.02.2016, therefore, without dwelling upon the question of limitation, submissions made by the counsel for the petitioner are considered.

It is the case of the plaintiff that he has 1/3rd share in the property and Maya Devi had no right or title to alienate the suit property to the defendants No. 1 to 3. Undisputedly, Bholanath, defendant No. 4 and Shri D.K. Gupta, husband of defendant No. 1 and father of defendants No. 2 and 3 are real brothers. If it is to be held that Maya Devi had no right or title, then the plaintiff would get the relief only if he succeeds in establishing that sale deed executed by Maya Devi in favour of the defendants No. 1 to 3 was without authority and was bad. It is the case of the plaintiff that he has 1/3rd share in the property and now the defendant No. 4 has claimed that by virtue of Will executed by Maya Devi, he is the owner of the entire property, then it is clear that the defendant No. 4 has primarily filed the counterclaim against the plaintiff. However, since the parties are related to each other being the siblings, therefore, the defendant No. 4 was liable to make consequential/ incidental prayer for declaration of the sale deed dated 23.04.1988 as well as 20.02.2001 and the partition deed dated 27.08.1997 as null and void.

Thus, this Court is of the considered opinion that the Court below did not commit any mistake by holding that the counterclaim has been made against the plaintiff and as a consequential / incidental relief, relief has been claimed against the co-defendant.

Under these circumstances, this Court is of the considered opinion that no case is made out warranting interference. The order dated 17.07.2019 passed by 12th Civil Judge, Class-I, Gwalior in Civil Suit No. 188-A/2009 and order dated 08.02.2016 are hereby affirmed.

Resultantly, the petition fails and is hereby dismissed.