The counter claim filed after the cause of action arose, much after the filing of the suit and submission of written statement, was not permissible under the law.

ORDER :

1. This civil revision under Section 115 of Code of Civil Procedure, 1908 (in short "CPC") has been filed being aggrieved by the impugned order dated 29.09.2021 passed by the Civil Judge, Junior Division, Jobat, District-Alirajpur (M.P.) in Civil Suit No.5-A/2019 whereby an application under Order 7 Rule 11 of CPC filed by the petitioners/plaintiffs has been dismissed.

2. The brief facts of the case are that the petitioners/plaintiffs have filed a suit before the learned trial court for declaration and removal of unauthorised construction and taking possession of the house and agricultural land and for permanent injunction against the respondents with a prayer to quash the mutation order dated 07.04.1992 of Tahsildar, Chandra Shekhar Azad Nagar (Bhabhara), District-Alirajpur (M.P.) and to declare the petitioners as owner of the disputed agricultural land.

3. After service to respondent No.1, he appeared before the Trial Court and submitted his written statement on 19.06.2019 and thereafter, issues were framed and subsequently, the petitioners submitted an affidavit under Order 18 Rule 4 of CPC of their witnesses. In the meantime, respondent No.1 died on 24.08.2019 thereafter, the legal heirs of respondent No.1 as respondent Nos.2 to 11 were brought on record. The legal representatives of respondent No.1 filed a counter claim on 15.06.2021 after a delay of 2 years and also filed an application for temporary injunction against the petitioners. After submission of aforementioned counter claim, the petitioners/plaintiffs filed an application under Order 7 Rule 11 of CPC before the trial court and prayed for quashing the counter claim filed by the legal representatives of the respondent No.1, however, the trial court has dismissed the said application by the impugned order. Against which, the present civil revision has been filed before this Court.

4. Learned counsel for the petitioners/plaintiffs has submitted that the Trial Court has committed grave error of law and facts in passing the impugned order whereby the application was arbitrarily and illegally been dismissed. The order passed by the trial court is against the settled principles of law and against the provisions of CPC. The trial court has committed grave error of law and facts in allowing the counter claim of the respondent No.1, which has been moved with an ulterior motive and to cover the lacuna in the written statement filed by them in the suit. Hence, he prays that the impugned order be set aside and further, counter claim filed by the respondents be dismissed.

5. None present on behalf of respondent Nos.1 to 10 though notices have been served upon them.

6. Learned counsel for the petitioners/plaintiffs has placed reliance upon judgment delivered in the cases of Vijay Prakash Jarath Vs. Tej Prakash Jarath 2016 (11) SCC 800 and Amanulla Khan Vs. Zaheer Khan 2001 (1) MPWN 140.

7. I have heard the learned counsel for the parties and perused the record. The sole question in the present petition is that "whether the counter claim filed by the legal representatives of defendant No.1 after the death of defendant No.1 of which cause of action arose on 14.01.2021, after about two years from the submission of written statement by original defendant No.1 i.e. Leemchand, can be entertained?"

8. It is undisputed fact that the present respondent Nos.1 to 10 are legal representatives of Late Shri Leemchand, who was defendant No.1 in civil suit No.5-A/2019 and after the death of Shri Leemchand, the present respondent Nos.1 to 10 are impleaded as defendants in suit. It is also undisputed fact that in the written statement filed by Late Shri Leemchand, there was no counter claim and after the death of Shri Leemchand and after impleaded as defendants being legal representatives of Late Leemchand, the alleged counter claim has been filed by respondent Nos.1 to 10 and thereby they raised objection on plaintiff's case on various grounds and sought permanent injunction against the plaint