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.

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 Panda) did not prosecute the suit. For which, as per Order dated 15.12.2017, the suit of the plaintiff vide C.S. No.61/2014 was dismissed for the default of the plaintiff.

So, the counter claim of the defendant No.2 was continued for filing of written statement by the plaintiff (Nityananda Panda), but, the plaintiff (Nityananda Panda) neither filed any written statement nor choose to participate in the counter claim of the defendant No.2 (Karunakar Panda). For which, in the counter claim of the defendant No.2, the plaintiff was set ex parte.

Therefore, the counter claim of the defendant No.2 was heard ex parte. The defendant No.2 adduced evidence from his side in his counter claim. After hearing of the arguments from the side of the defendant No.2 in respect of his counter claim, the counter claim of the defendant No.2 was decreed ex parte against the plaintiff as per its Judgment and Decree dated 25.07.2017 and 10.08.2017 respectively preliminarily for partition of his 8 Annas share from the suit properties.

Thereafter, the defendant No.2 initiated the final decree proceeding in respect of the ex parte decree of his counter claim in his favour.

In that final decree proceeding, notice was issued to the defendant No.1 (Gouranga Chandra Panda).

From that notice in the final decree, he (defendant No.1) came to know, for the first time about the ex parte Judgment & Decree passed in respect of the counter claim of the defendant No.2 in the suit vide C.S. No.61/2014.

So, he (defendant No.1-Gouranga Chandra Panda) filed a Civil Misc. Application vide CMA No.40/2018 under Order 9, Rule 13 of the CPC, 1908 praying for setting aside the ex- parte Judgment and Decree dated 25.07.2017 and 10.08.2017 respectively passed in respect of the counter claim of the defendant No.2 in favour of the defendant No.2 in the suit vide C.S. No.61/2014 on the ground that, he (defendant No.1)

had/has share/interest in the suit properties and in the counter claim of the defendant No.2 for partition of the suit properties, he (defendant No.1) should have been served with notice, but no notice was issued/served on him (defendant No.1). For which, due to non-service of notice against him (defendant No.1) in the counter claim of the defendant No.2, the exparte Judgment & De