IMPORTANT POINT
A counter-claim can proceed independently even after the withdrawal of the original suit, as it is treated as a separate cause of action under the Civil Procedure Code.

JUDGMENT :

1. Heard Sri Aditya Bhushan Singhal, learned counsel for the appellant and perused the record.

2. The Present appeal has been filed challenging impugned judgement and order dated 27.2.2024 passed by the Additional Principal Judge, Family Court, Gautam Budh Nagar in Case No. 883 of 2021 (Ishita vs. Tarun), under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) only to the extent whereby the counter-claim of the respondent-husband has been permitted to proceed on its own as an independent petition.

3. The appellant-wife has filed the divorce petition under Section 13(1)(ia) of the Act. A counter-claim under Section 23 (a) of the Act has been filed the respondent-husband for custody of a girl child born out of the wedlock. Issues were framed in the suit and thereafter one withdrawal application filed by the appellant-wife under Order XXIII Rule (1)(3) of Civil Procedure Code, 1908 (hereinafter referred to as the ‘C.P.C.’) read with Section 151 C.P.C. Withdrawal of the suit was not opposed by stating that the respondent-husband has no objection to the withdrawal application as long as his counter-claim is proceeded with by the Court. In reply, it has been stated by the appellant-wife that the counter-claim by itself is not maintainable. Withdrawal application was allowed by the impugned order dated 27.2.2024, however, it was found that the respondent-husband has filed counter-claim on 15.7.2022 and no objection was raised regarding maintainability or admissibility of the counter-claim by the appellant-wife at that stage and thereafter, issues were framed on the basis of the said counter-claim filed by the respondent-husband and even upto that stage no objection was raised by the appellant-wife. The Court below held that maintainability of counter-claim cannot be considered while deciding the withdrawal application. Accordingly, the withdrawal application filed by the appellant-wife was allowed and divorce petition was dismissed as withdrawn, however, it was provided that the counter-claim filed by the respondent-husband shall proceed on its own as an independent petition and date was fixed for evidence with respect to the counter-claim.

4. Submission of the learned counsel for the appellant is that withdrawal application was not opposed by the respondent-husband and therefore, counter-claim cannot proceed. He submits that since the principal suit itself does not exist, therefore, the counter-claim does not survive. He has drawn attention to the provision of Order VIII Rule 6-D of C.P.C. to contend that although this provision provides for the effect of discontinuance of suit, however, it is provided that if in any case the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed and counter-claim may nevertheless be proceeded with. He submits that the suit, in the present case, has not been ‘dismissed’ and that suit has only been ‘withdrawn’ and therefore, the withdrawal of the suit is not covered under Order VIII Rule 6-D of C.P.C.

5. We have considered the submissions of learned counsel for the appellant and perused the record.

6. For the purpose of disposal of present appeal, it would be appropriate to take note of the relevant provisions of C.P.C., which are quoted as under:

Order XXIII Rule 1

1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the