Syed Mohd. Zamir vs Syed Mohd. Aquil and Others

Pradeep Nandrajog, J.—The petitioners are aggrieved by an order passed by the learned Civil Judge on 19.10.1995 permitting the plaintiffs

to withdraw the suit.

Grievance of the petitioner who was impleaded as defendant No. 1 in the suit is that along with the suit which was allowed to be withdrawn, the

claim of the petitioner pertaining to pressing his counter claim was rejected by the learned Judge.

Relevant facts need to be noted.

A suit was filed before the learned Civil Judge by Mohd. Aquil, Mohd. Nasir and Mohd. Fazil. 4 persons were impleaded as defendant.

Petitioner was impleaded as defendant No. 1. A decree of permanent injunction was prayed for. Basis of the claim was that plaintiffs stated that

their father was a tenant in respect of the suit property under defendants No. 3 and 4 and that defendants No. 1 and 2 were threatening to

dispossess them from the suit property.

Defendant No. 1 and 2 claimed a right in the property based on inheritance as heirs of late Mohd. Azim.

After obtaining an ex-parte injunction, plaintiffs transferred the property to third parties and stopped appearing. Defendants No. 1 and 2 filed an

application under Order 6 Rule 17 CPC on 6.2.1994 praying that leave be granted to them to amend the written statement and raise a counter

claim. Amended written statement with counter claim was filed. Decree of permanent injunction was prayed against the plaintiff. Requisite court fee

was affixed on the proposed amended written statement.

I have perused the Trial Court record. Proposed amended written statement is at pages 229-243.

On 28.5.1994 the learned Civil Judge recorded an order which reads as under:

At the outset, I may mention that on 1.2.1994, the plaintiff No. 2 has made a statement in the Court (for himself and on behalf of plaintiffs No. 1

and 3 that he had sold the property in question to someone in December 1993....

An application under Order 6 Rule 17 CPC filed by the defendants No. 1 and 2 is also pending. The plaintiffs were duly served with notice of the

same through son of Mohd. Fazil (plaintiff No. 3)....

The suit was filed on 28.12.1992. After obtaining ex-parte stay dated 28.12.1992 from the Court of learned Additional District Judge, Delhi the

plaintiffs disposed of the suit property somewhere in December 1993. It is quite queer that after selling the property, the plaintiffs are not caring to

appear in the Court....

plaintiffs filed an application under Order 23 Rule 1 CPC which was allowed vide order dated 19.10.1995 holding that the plaintiffs always

have a right to withdraw their suit and that the counter claim does not bear any Court fee.

In the backdrop of facts afore-noted, suffice would it be to state that neither party can steal a march over the other by filing a suit, obtaining an

ex-parte injunction and thereafter selling the property and having obtained an unfair advantage claiming that it does not want to litigate.

Of course, a plaintiff is the dominus litus and can choose his defendants and also whether he would like to litigate, but where a counter claim is

pending or a claim to urge a counter claim is pending, the Court has to independently consider whether counter claim can continue. It is settled law

that a counter claim is akin to a plaint. It has to be registered as a plaint. Thus, while permitting the plaintiffs to withdraw the suit learned Trial Judge

could not have thrown to the dustbin the claim of defendant No. 1 to urge a counter claim.

To that extent impugned order has to be set aside.

The petition accordingly stands disposed of setting aside the impugned order dated 9.10.1995 to the extent it has dismissed the application

filed by defendant No. 1 and 2 under Order 6 Rule 17 CPC praying that defendant No. 1 and 2 should be permitted to urge a counter claim.

Proceedings are revived before the learned Trial Judge. Learned Trial Judge would decide the application for amendment filed by defendant

No. 1 and 2 urging to raise a counter claim. If the application is allowed the counter claim of defendant No. 1 would be registered as a suit.

Needless to state, if the application is dismissed necessary consequences shall flow.

In either eventuality, further remedies as available in law would be open to the parties.

LCR be returned.

No costs.