Deepak Kumar and Another vs Shri Binod Kumar Sinha and Others

Nagendra Rai, J.—Defendants No. 4 and 5 are the Petitioners against the order dated 9.8.2001, passed by the 3rd Subordinate Judge, Muzaffarpur, in Title Suit No. 79 of 1988, by which the application filed by the Petitioners under Order VIII, Rule 6-A of the CPC (hereinafter referred to as ''the Code'') has been rejected.

The Plaintiff-opposite parties filed Title Suit No. 79 of 1988 with regard to the property described in the schedules of the plaint, challenging the order passed by the Superintendent of Survey, Muzaffarpur, on 30.4.1977 against them as well as the Survey Khatian prepared on the basis of the said order. They also made an alternative prayer that in case the Court finds that there was no previous portion, then a preliminary decree may be passed for partition giving half share to the Plaintiffs.

The Plaintiffs are representing the branch of Rameshwar Bajrang, whereas, the Defendants represent the branch of Shiv Prasad, another brother of Rameshwar Bajrang. Defendants No. 1 and 2 are sons of late Shiv Prasad and Defendant No. 3 is son of Defendant No. 1 and Defendants No. 4 and 5 are sons of Defendant No. 2. The Defendants filed several sets of written statement and claimed previous partition. The parties have also led evidence. Thereafter, an application was filed under Order VIII, Rule 6-A of the Code by the Petitioners and others regarding the counter claim for partition of the agricultural lands. The Court below has rejected the same on two grounds, firstly it has stated that the. counter claim has been made at the belated stage after filing of the written statement and leading of the evidence by some of the parties and secondly that the counter claim has been made with regard to a land regarding which consolidation proceeding has been going on and no final publication u/s 26A of the Bihar Consolidation of Holding and Prevention of Fragmentation Act, 1956 (for short the Act'') has been issued and as such the claim with regard to the same was not maintainable in the Civil Court.

Learned Counsel appearing for the Petitioners submitted that the cause of action to file the counter claim arose after the Plaintiffs filed two Kiraynamas and as such the court below has committed a jurisdictional error in rejecting the counter claim on the ground of delay. However, he has not been able to satisfy this Court that the final publication has been made u/s 26A of the Act and as such entertainment of the suit u/s 4(c) of the Act is not barred.

Order VIII, Rule 6-A of the Code deals with the counter-claim by Defendant and it provides, inter-alia, that 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 filling of the suit but before the Defendant has delivered his defence or before the time limited for delivering his defence has expired.

In the case of Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, it has been held by the Apex Court that Rule 6A(1) of Order VIII of the Code does not bar the filing of a counter claim by the Defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter claim can be filed, provided the cause of action had accrued to the Defendant before the Defendant had delivered his defence or before the time limited for delivering his defence has expired. The counter-claim filed by the Defendant after filing of the written statement cannot be rejected if the cause of action has arisen as stated above.

Thus, there is no legal bar in filing the counter-claim even after filing of the written statement but the question for consideration is as to whether it can be filed at any time. The trial court has found that the suit is of the year 1988. The written statement was filed in 1989. The parties have started leading evidence and thereafter, the counter-claim was filed in the year 1999. In such a situation it has been found that the counter-claim was a belated one and no satisfactory explanation was given for entertaining the counter-claim at a belated stage. The said view taken by the trial Court cannot be said to be suffering from any jurisdictional error. This apart, the counter-claim has been filed with regard to the agricultural land, admittedly, regarding which a consolidation proceeding is going on and as such there is a legal bar in maintaining the suit with regard to the said land u/s 4(1)(c) of the Act, unless consolidation proceeding is over and a notification u/s 26A of the Act has been issued. Admittedly, the Court has found that no such notification u/s 26A of the Act has been issued and as such the counter-claim was legally barred under the aforesaid provision.

Thus, there is no merit in this Civil Revision and it is, accordingly, dismissed.