Shri Tej Pal Kesri vs Dr. Mohan Lal Sharma

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated October 3, 1988 whereby the application filed by the Defendant for filing counter claim was dismissed.

The Plaintiff filed the suit for rendition of accounts. After the Plaintiff''s evidence was closed and case was fixed for evidence of the Defendant, latter moved an application for filing counter claim pleading, inter alia, that during the pendency of the present suit, mother of the parties expired on 5th December, 1955, and, therefore, the house situated in village Katu, district Sangrur, which was occupied by their mother, is to be partitioned and the property left by their mother in the said house is to be accounted for by the Plaintiff and delivered the share of the Defendant out of that property to him. This application was resisted on behalf of the Plaintiff, inter alia, on the ground that no such counter claim was maintainable at this stage. The other allegations were also denied.

However, the trial Court relying upon the judgment of Orissa High Court in Kashi v. Paramanands AIR 1985 Ori 260 in which it was held that the counter claim should be filed only along with the written statement, dismissed the application.

Learned Counsel for the Petitioner submitted that the said judgment of the Orissa High Court stands overruled subsequently in Mangulu Pirai v. Prafulla Kumar Singh AIR 1989 Ori 50. In view of the Supreme Court judgment in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, in which it has been held that "Rule 6A(1) does not, on the face of it, 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, whether such counter claim is in the nature of a claim for damages or not. Therefore, the counter claim filed by the Appellant after filing of the written statement cannot be said to be not maintainable, as the cause of action for the counter claim had arisen before the filing of the written statement.

In view of this authoritative pronouncement, learned Counsel for the Plaintiff-Respondent submitted that the counter claim now made by the Defendant was not maintainable on the ground that the Court at Chandigarh had no jurisdiction to decide the matter now being raised as the immovable property is situated in district Sangrur over which the Court at Chandigarh had no jurisdiction. Thus argued the learned Counsel, that being so, this petition is liable to be dismissed on this ground. On the other hand, the learned Counsel for the Petitioner submitted that this question has not been decided by the trial Court and, therefore, could not be allowed to be taken in this petition.

After hearing the learned Counsel for the parties, I do not find any justification for interference in revisional jurisdiction of course, the reasons given by the trial Court are not sustainable, but prima facie, the Court at Chandigarh will have no jurisdiction to decide the dispute between the parties relating to immovable property situated in district Sangrur. The present suit was filed in August 1985 and is still pending for adjudication. The Defendant will be well advised to file a separate suit, if any, in a competent Court having jurisdiction over the subject-matter. Consequently, this petition fails and is dismissed.

In order to expedite the hearing of the suit, it is directed that Defendant will lead his evidence at his own responsibility though dasti summonses may be given, if so advised, as contemplated under Order 16, Rule 7-A, CPC Since at the time of motion hearing further proceedings were stayed, the parties are directed to appear in the trial Court on August 16, 1989.