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Judgment
B.V. Pinto, J.—Though this matter is listed for Preliminary Hearing, with the consent of the learned counsel for the petitioner and the counsel for the respondent No. 2 who is the contesting party, the same is taken up for final disposal. This petition is filed by the plaintiff in O.S. No. 182/2006 on the file of the Senior Civil Judge and JMFC, Doddaballapur, in which the application in IA No. 20 filed by the plaintiff under Order 8 Rule 6(C) is dismissed. The plaintiff No. 1 is the wife and plaintiff Nos. 2 and 3 are the children of one Late Krishna who has filed a suit for partition. The suit was filed against defendant No. 1 only. Thereafter respondents 2 to 4 filed impleading application to come on record as defendant Nos. 2 to 4 claiming that defendant No. 2 is the wife and defendant Nos. 3 and 4 are the children of Late Krishna and they are also entitled for share in the suit schedule properties. The court has allowed the application and arrayed them as defendant Nos. 2 to 4. The defendants 2 to 4 made a counter claim in the written statement claiming share in the property. The plaintiff filed an application under Order 8 Rule 6(C) praying to reject the said claim made by the defendant Nos. 2 to 4 on the ground that the Order 8 Rule 6(C) does not provide for such a counter claim in the suit for partition.
Sri. N. Subba Shastry, learned counsel for the petitioner submits that the application for impleadment filed by the defendant Nos. 2 to 4 has not been challenged by the petitioners and that this being the partition suit, the claim of the defendant Nos. 2 to 4 would be decided as per law. However the trial court has erred in dismissing the application filed by the plaintiff praying to reject the claim of the defendant Nos. 2 to 4 laying a counter claim.
Sri. Vishwanath Sabarad, who takes notice for respondent No. 2 submits that respondent No. 2 being the second wife and respondent Nos. 3 and 4 being children born to one Late Krishna they are also entitled for share in the suit schedule property and therefore,. since their impleading application has been allowed their claim for partition and share in the suit schedule property cannot be negated and therefore the trial court is right in dismissing the application filed by the plaintiff.
Order 8 Rule 6C states as follows:
6C. EXCLUSION OF COUNTER CLAIM:
Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an Order that such counter claim may be excluded, and the court may, on the hearing of such application make such Order as it thinks fit.
In view of the above express provision of law, since the plaintiff has contended that the counter claim need not be disposed of and since the issues are not settled in relation to the counter claim, the application filed by the plaintiff deserves to be allowed.
In that view of the matter, the order dated 13.08.2013 impugned in this case is liable to be set aside. Hence the order dated 13.08.2013 passed in O.S. No. 18/2006 on IA No. 20 dismissing the application filed under Order 8 Rule 6(C) of CPC filed by the plaintiff is hereby set aside. Petition is allowed accordingly.
However the claim of the defendant Nos. 2 to 4 as made by them in the written statement shall not be affected, if, otherwise they are entitled for the same.