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IN THE HIGH COURT OF ORISSA AT CUTTACK
ANANDA CHANDRA BEHERA
Karunakar Panda – Appellant
Versus
Nityananda Panda – Respondent
JUDGMENT :
ANANDA CHANDRA BEHERA, J.
1. This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the impugned Judgment dated 24.02.2021 passed in F.A.O No.99/2018 arising out of CMA No.40/2018 in connection with the counterclaim in the suit vide C.S. No.61 of 2014 by the learned District Judge, Bhadrak.
2. The factual backgrounds of this Civil Misc. Petition, which prompted the petitioner for filing the same is that, the Opp. Party No.1 in this CMP i.e.Nityananda Panda being the sole plaintiff filed a suit for partition vide C.S. No.61 of 2014 in the Court of learned Civil Judge, (Junior Division), Basudevpur against the Opp. Party No.2 and petitioner in this CMP i.e. against Gouranga Ch. Panda and Karunakar Panda arraying them as defendant Nos.1 and 2 respectively praying for partition of the suit properties.
In that suit vide C.S. No.61 of 2014, the defendant No.2 Karunakar Panda (petitioner in this CMP) filed a counter claim along with his written statement under Order 8, Rule 6A of the CPC, 1908 praying for partition of his 8 Annas share from the suit properties.
Thereafter, the plaintiff (Nityananda
Counter claims in partition suits must be directed against the plaintiff; co-defendants cannot initiate claims solely against each other without notice, as all parties have interchangeable roles.
A counterclaim in a partition suit must be against the plaintiff; failing to notify co-defendants constitutes a violation of natural justice, rendering any ex parte decree unsustainable.
A counter claim must relate to the plaintiff's claims; dissimilarity in cause of action renders it non-maintainable.
A defendant cannot file a counterclaim against a co-defendant under the CPC, as the provisions only allow counterclaims against the plaintiff.
Counter claims must be against plaintiffs and not co-defendants; prior partitions cannot be reopened based solely on alleged inequities.
Counter-claim by defendant – Though normal rule is that subsequent to filing of written statement, counter-claim cannot be filed after issues have been framed, under exceptional circumstances, counte....
A counterclaim directed solely against a co-defendant is typically impermissible; however, if it intertwines with a plaintiff's claim, it may hold validity under commercial agreements.
Single appeal challenging trial court's decree in suit and dismissal of counter-claim held not maintainable; separate appeals required as counter-claim is cross-suit. First appellate judgment set asi....
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