Sahadeo Paswan v. Sunil Paswan And ORS

Patna High Court C.Misc. No.1108 of 2016 (2) dt.29-09-2016

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1108 of 2016 ====================================================== Sahadeo Paswan .... .... Appellant/s

Versus

Sunil Paswan & Ors .... .... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Tara Nath Jha For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 29-09-2016 Heard the learned counsel, Mr. Tara Nath Jha for the petitioner.

Perused the impugned order dated 25.04.2016 passed by Sub Judge, Banmankhi in Title Suit No.79 of 2005 whereby the learned Court below has recalled the earlier order dated 13.01.2016 by which the counter-claim filed by the petitioner was accepted. This counter-claim is directed against the defendant No.4 only.

The learned counsel, Mr. Jha for the petitioner submitted that once it was accepted then the Court below could not have recalled the order because when the defendant No.4 filed the written statement claiming title on the basis of registered sale deeds, the necessity to file counter-claim arose, as such, the defendant No.1-petitioner filed the counter-claim. According to the learned counsel, this counter-claim is not directed against the

Patna High Court C.Misc. No.1108 of 2016 (2) dt.29-09-2016 plaintiff rather it is against defendant No.4 only. The Hon'ble Supreme Court in the case of Rohit Singh & Ors. v. State of Bihar & Ors., 2007(1) PLJR 232(SC) has held that "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 has necessarily to be directed against the plaintiff, though incidentally or alongwith it, it may also claim relief against codefendants in the suit. A counter-claim directed solely against codefendant is not maintainable." In view of the above settled principles of law laid down by the Hon'ble Supreme Court, the counter-claim filed by defendant No.1-petitioner against defendant No.4 is not at all maintainable. Therefore, the learned Court below has rightly recalled the order and refused to accept the counter-claim. Thus, there is no illegality in the order, as such, this Civil Miscellaneous application is dismissed. (Mungeshwar Sahoo, J) Saurabh/- U T