The main legal point established is the admissibility and maintainability of a counter-claim against the plaintiff and a third party, and the timeliness of objections raised under Order VII Rule 11, CPC.

Abhay M. Naik, J.

1. This petition under Article 227 of the Constitution of India has been preferred for quashing the order dated 10-12-09 passed under Order VII Rule 11, CPC.

2. Briefly stated relevant facts are that the plaintiff/petitioner has instituted a suit through power of attorney Ashish Kumar Jain for declaration of title and perpetual injunction against the defendant/respondent alone with allegations that he was a tenant of the father of defendant/respondent in room No. 7 at the rate of Rs. 11/- per month as rent. Electricity charges are paid by him separately to the respondent. Lastly, the rent was paid for the month of December, 2003 on 7-1-2004 under a clear receipt. After the death of father, respondent being the heir was offered rent which was not accepted by him. Plaintiff tendered rent for subsequent period by money order which came back on account of refusal on the part of the respondent. There was a leakage in the ceiling which was not permitted by the respondent to be repaired. Instead, he threatened to disconnect the electricity connection and to dispossess the plaintiff forcibly. Hence, the suit that the plaintiff be declared tenant of defendant in room No. 7 and he be restrained permanently from dispossessing the plaintiff as well as from depriving him of facility of electricity.

3. On being served with summons, defendant was directed on 15-2-2006 to submit written statement necessarily on 3-3-2006. On 3-3-2006, defendant did not remain present up to 4 p.m. Consequently, ex parte proceedings were drawn against him. Case was fixed for ex parte proceedings on 27-3-2006. However, later on the defendant on the same day, i.e., on 3-3-06 submitted his written statement as well as counter claim with requisite Court fee. On 27-3-2006, copies of the written statement and the counter claim were furnished to the plaintiff and the case was fixed for written statement to counter-claim on 27-4-2006. On this day, the plaintiff did not submit the written statement and, instead, sought time on various occasions for the said purpose. On 28-8-06, written statement of counter claim was submitted by the plaintiff. Issues were raised by the learned Trial Judge on 2-11-06 on the basis of plaint as well as counter claim. Plaintiff adduced his evidence which was closed on 13-10-08. Case was, thereafter, fixed on defendant/respondent's evidence. Defendant/respondent submitted his affidavit containing chief examination on 22-1-09. Plaintiff sought time to cross-examine him. Exh. P-2 was marked by respondent on a document in the affidavit under Order XVIII Rule 4, CPC. Plaintiff submitted an application on 5-5-09 under Order XIII Rule 3. CPC with a prayer that the said document being a document of partition may be declared inadmissible for want of proper stamp duty as well as registration. This application was rejected on 8-9-09 and the plaintiff was directed to cross-examine positively the defendant's witnesses on 29-9-2009. This order was challenged in W.P. No. 5383/2009 under Article 227 of the Constitution of India. This Court vide order dated 19-1-2010 dismissed the writ petition with a direction to the Trial Court to decide the civil suit as early as possible preferably within a period of six months.

4. Plaintiff was avoiding cross-examination on defendant's witnesses, therefore, the learned Trial Court cautioned him that right to cross-examine may be closed if the defendant's witnesses are not cross-examined. Despite such cautioning, on 1-10-09 and 9-11-09, plaintiff did not cross-examine the defendant's witnesses and, instead, submitted an application on 19-11-09 under Order VII Rule 11, CPC with allegations that the facts pertaining to counter claim are not mentioned in the written statement. Counter-claim has been submitted separately and independently which is not permissible. This apart, Ashish Kumar Jain has been impleaded in the counter-claim who is not a party to the suit. Therefore, the counter-claim being not per