IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE HIRDESH

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ON THE 4 OF NOVEMBER, 2025 MISC. PETITION No. 4148 of 2021 SURAJ SINGH Versus BABULAL AND OTHERS Appearance:

Shri Nirmal Sharma - Advocate for the petitioner.

Shri Harendra Singh Dhakad- Advocate for respondent No.3.

ORDER This petition under Article 227 of the Constitution of India has been preferred by the petitioner/defendant No.2, being aggrieved by the impugned order dated 09.11.2021 passed by the Civil Judge, Senior Division, Pohari, District Shivpuri, in R.C.S. No. 21-A/2019, whereby the trial Court declined to take the counter-claim filed by the petitioner on record.

2. Respondent No.1 (plaintiff) instituted a civil suit for declaration and permanent injunction in respect of land situated at Survey No.32, measuring 2 biswa, having dimensions of 50 ft.x 45 ft. The plaintiff pleaded that he had taken possession of the said land on 01.07.1995. Being a landless person, his possession was initially treated as encroachment. Subsequently, on the basis of his possession, the land was allotted to him vide resolution dated

14.04.2010, upon payment of premium of Rs.505/-.

3. After service of summons, the present petitioner (defendant No. 2)

Signature Not Verified Signed by: AVINASH appeared and filed a written statement (Annexure P-4), denying all the averments of the plaintiff and asserting that the disputed land never belonged to the plaintiff. It was further pleaded that the petitioner was in possession of the land and that the same had been allotted to him. Issues were framed thereafter. Meanwhile, an order under Order 39 Rules 1 and 2 of CPC was passed, against which an appeal was preferred. During the pendency of that appeal, no substantial progress took place before the trial Court. The plaintiff’s affidavit under Order 39 Rule 4 CPC was received by the trial Court on 04.10.2021. The appeal against the injunction order was decided subsequently.

4. Thereafter, the petitioner filed a counter-claim (Annexure P-10)

seeking a declaration of his ownership and possession over the disputed property. However, the trial Court, by the impugned order dated 09.11.2021, rejected the counter-claim on the ground that issues had already been framed and the matter was fixed for the plaintiff’s evidence; hence, a counter-claim could not be entertained at that stage.

5. Being aggrieved by the impugned order, petitioner filed this petition with submission that order passed by the trial Court is illegal, arbitrary and contrary to law. He contended that the very object of introducing the concept of counter-claim in the Code of Civil Procedure was to avoid multiplicity of proceedings. It was argued that both the plaintiff and the petitioner claim ownership over the same property; therefore, the issues involved are identical and should be adjudicated in the same proceedings. The petitioner further submitted that the counter-claim was filed following subsequent Signature Not Verified Signed by: AVINASH developments, particularly after the trial Court and the appellate Court passed orders on the temporary injunction application on 21.01.2021. Hence, filing a counter-claim became necessary for proper adjudication of the dispute and to prevent multiplicity of litigation. On these grounds, the petitioner prayed for setting aside the impugned order and for taking the counter-claim on record.

6. Despite service of notice, none appeared on behalf of the contesting respondent No.1 – Babulal.

7. After hearing counsel for the parties and perused the documents available on record.

8. The trial Court rejected the counter-claim on the ground that the written statement had already been filed, issues had been framed, and the case was fixed for recording the plaintiff’s evidence. Therefore, in the opinion of the trial Court, the counter-claim could not be entertained at such a belated stage.

9. Order VIII Rule 6(A) of the Code of Civil Procedure, 1908 provides as under:-

(1) A defendant in a suit