The main legal point established in the judgment is that the counterclaim filed by the defendant was barred by time and not maintainable.

ORDER :

Shri N.K. Gupta, Senior Advocate with Shri S. D. Singh, Counsel for the appellants.

Shri R.K. Soni, Government Advocate for the respondents No. 1 and 2/State.

Shri G.S. Chitnis, Counsel for the respondents No. 3 to 5.

Shri V.K. Bhardwaj, Senior Advocate with Shri Rohit Batham and Shri Ajay Raghuvanshi, Counsel for the LRs. of respondent No. 7.

This miscellaneous appeal under Order 43, Rule 1(u) of Civil Procedure Code has been filed challenging the order dated 5-9-2014 passed by First Additional District Judge, Mungawali, District Ashoknagar in Civil Appeal No. 29A/2012 thereby setting aside the judgment and decree passed by the trial Court, has remanded the case.

2. The necessary facts for the disposal of the present appeal in short are that the plaintiffs had filed a suit for declaration of title and permanent injunction as well as for declaring the orders dated 18-1-2000 and 8-5-2000 passed by SDO, Mungawali as null and void. The respondent No. 7 namely Kaji Makbooluddin had filed a counterclaim against the plaintiffs as well as defendant No. 1. The appellants filed an application under Order 7, Rule 11 read with sections 94 and 151 of Civil Procedure Code for dismissing the counterclaim on the ground that not only the counterclaim has been filed by one defendant against codefendant but it is also barred by limitation.

3. The trial Court by order dated 26-4-2007 allowed the application filed by the appellants under Order 7, Rule 11 of Civil Procedure Code and dismissed the counterclaim filed by the defendant No. 7. Being aggrieved by the order dated 26-4-2007, defendant No. 7 had filed a miscellaneous appeal which was registered as M. A. No. 3/2007. It appears that no interim order was passed in the said appeal, as a result of which, the trial Court proceeded with the trial. Ultimately, the suit filed by the plaintiffs/respondents was dismissed.

4. Against dismissal of the suit, three regular Civil Appeals No. 29A/2012, 30A/2012 and 58A/2012 were filed by appellants as well as by Kaji Makbooluddin and Khalil Ahmed. As the Miscellaneous Appeal No. 3/2007 was also pending, therefore, all the four cases were clubbed together.

5. The Lower Appellate Court by impugned order dated 5-9-2014 has held that although the counterclaim filed by the defendant No. 7 against defendant No. 1 was rightly rejected by the trial Court but held that the dismissal of the counterclaim filed by the defendant No. 7 against the plaintiffs was not in accordance with law and, therefore, set aside the order dated 26-4-2007 passed by the trial Court. As a consequence thereof, the judgment and decree passed by the trial Court on 20-7-2009 was also set aside and the matter has been remanded back to the trial Court and has directed that the trial Court shall consider the counterclaim filed by the defendant No. 7 after giving opportunity to the plaintiffs to file their written statement as well as after framing the additional issues would give opportunity of leading evidence and, thereafter, the trial Court shall pass the judgment and decree afresh. It was further directed that the counterclaim shall be maintainable against the plaintiffs only.

6. Challenging the order passed by the Court below, it is submitted by the counsel for the appellants that it is well established principle of law that if any cause of action has arisen after filing of the written statement, then the counterclaim is not maintainable. If the contents of the counterclaim are considered, then it is clear that for the first time the cause of action, according to the defendant No. 7 himself, arose on the day when the suit was filed by the plaintiffs i.e. on 8-1-2001 and for the second time it arose on 4-12-2005 when a threat was given by the plaintiffs to dispossess the defendant No. 7. It is submitted that the written statement was filed by the defendant No. 7 on 24-9-2003 whereas the counterclaim was filed on 7-2-2006. In paragraph 11 of the counterclaim, defendant No. 7 has explained the