A counter claim mainly filed against the plaintiff but with some incidental relief against the co-defendant can be allowed.

By the Court.- The present application is filed under Section 115 of the Civil Procedure Code against the order dated 12.07.2010, passed by the Sub-Judge-1, Hazaribagh in T.S. No. 104 of 2009, whereby the learned Sub-Judge has rejected the counter claim filed on behalf of the defendant No.6, petitioner herein, by way of his written statement filed on 12th April, 2010.

2. Heard the learned counsel for the petitioner and learned counsel for the respondents.

3. Perused the papers.

4. Respondent Nos. 1 and 2 are the original plaintiff.

5. The learned counsel for the petitioner/applicant pointed out that the respondent No.2 died during the pendency of this writ petition and his legal heirs have been substituted and notices have been duly served on the legal heirs and representatives of the deceased-respondent No. 2. It is submitted that though notices have been duly served upon the legal heirs and representatives of the deceased-respondent No.2, but none appears on their behalf. So far as respondent No.3 (original defendant No.8) is concerned, he is represented by the learned senior counsel Mr. M. Sohail Anwar.

6. The learned counsel appearing for the respondent No. 3 (original defendant No.8) submitted that the present petitioner in its counter claim before the Court below has mainly sought relief against the codefendant and therefore, the Court below has rightly and properly rejected the counter claim made by the petitioner. It is further submitted that the petitioner, in its counter claim, has also challenged the order passed by the Settlement Officer, dated 05.02.2008 in Miscellaneous Case/Appeal No. 53 of 2006 and such relief is not permissible in the counter claim, because the order passed by the Settlement Officer is in favour of the defendant No.8.

7. As against that the learned counsel for the petitioner submitted that it was an incidental and consequential relief. claimed by the present petitioner in its counter claim but the petitioner is not pressing that relief and his counter claim, which is filed against the plaintiff in the suit, the right title and interest can be decided by the competent civil Court in respect of the suit property, which is under challenge. In support of his contentions, the learned counsel for the petitioner has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Rohit Singh and others v. State of Bihar (now State of Jharkhand) and others, reported in (2006) 12 SCC 734.

8. Upon hearing the learned counsel for the parties and on perusal of the order dated 12.07.2010 passed by the Court below in Title Suit No. 104 of 2009 and more particularly on perusal of the written statement/ counter claim rued by the present petitioner, it appears that the petitioner has mainly sought relief against the plaintiff in his counter claim in respect of the suit property as described in Schedule 'I', which is attached to the said counter claim. The prayer clause (Para 31 of the counter claim) clearly indicates that so far as sub-clause 'a' of the said prayer clause is concerned, it is in respect of the defendants right; title and interest over Schedule 'I' of the suit property and so far as the prayer clause made in sub-clause 'b' is concerned, it was against the order of the Settlement Officer dated 05.02.2008, passed in Miscellaneous Case No. 52 of 2006. According to the learned counsel for the petitioner, the said relief is incidental/consequential relief but the main relief was sought against the plaintiff in the Title Suit No. 104 of 2009. The Court below has proceeded on the basis that the petitioner herein (original defendant No.6) has sought a relief against the co-defendant, namely, defendant No.8 and therefore, the counter claim filed by the present petitioner (original defendant No.6) was ordered to be rejected. In the light of the judgment referred to and relied upon by the learned counsel for the petitioner in the case of Rohit Singh and others v. State of Bihar (now State of