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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.333 of 2018 ======================================================
1. Bigan Upadhyay son of Late Ramayan Upadhyay resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
2. Girish Upadhyay son of Late Karesan Upadhyay resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
3. Suryanath Upadhyay, son of Late Ram Sakal Upadhyay, resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
4. Vijay Upadhyay, son of Late Ramayan Upadhyay resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
5.1. Ajay Upadhyay son of Late Deomuni Upadhyay resident of Village-
Panapur, P.O.- Panapur, Police Station- Karagahar, District- Rohtas.
5.2. Banarasi Upadhyay son of Late Deomuni Upadhyay, resident of Village-
Panapur, P.O.- Panapur, Police Station- Karagahar, District- Rohtas.
5.3. Sita Kuer daughter of Late Deomuni Upadhyay, resident of Village-
Shukalpura, P.O.- Mahuli, Police Station- Karagahar, District- Rohtas.
6. Deo Raj Upadhyay, son of Late Shiv Bachan Upadhyay. resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
... ... Petitioner/s Versus
1. Yamuna Devi wife of Dr. Umesh Rai, resident of Village and Post- Panapur, Police Station- Karagahar, District- Rohtas, at present Mohalla- Gorakshani near Deputy Director, Consolidation Department, Sasaram Officer, Post-
Sasaram, Police Station- Sasaram (T), District- Rohtas.
2. Ramashankar Rai, son of Late Kailash Rai resident of Village- Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
3. Dabblu Rai @ Shiv Shambhu Rai son of Late Jag Narayan Rai, resident of Village- Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
4. Baijnath Rai @ Babblu Rai son of Late Jag Narayan Rai resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
5. Most. Janki Kuer, wife of Late Jag Narayan Rai, resident of Village-
Panapur, Post- Panapur, Police Station- Karagahar, District- Rohtas.
6.1. Shiv Shankar Rai son of Late Raghubansh Rai, resident of Village and P.O.-
Panapur, Police Station- Karagahar, District- Rohtas.
6.2. Most. Pushpa Kuer, wife of Late Kamalesh Rai, daughter-in- law of Late Raghubansh Rai, resident of Village and P.O.- Panapur, Police Station-
Karagahar, District- Rohtas.
6.3. Most. Neelam Kuer, wife of Late Bimlesh Rai, daughter-in- law of Late Raghubansh Rai, resident of Village and P.O.- Panapur, Police Station-
Karagahar, District- Rohtas.
6.4. Jay Ranjan Rai, son of Late Kamalesh Rai, grand son of Late Raghubansh Rai, resident of Village and P.O.- Panapur, Police Station- Karagahar, District- Rohtas.
6.5. Shashi Ranjan Rai, son of Late Kamalesh Rai, grand son of Late Raghubansh Rai, resident of Village and P.O.- Panapur, Police Station-
Karagahar, District- Rohtas.
7. Surya Bansh Rai son of Late Paras Rai resident of Village- Panapur, Post-
Panapur, Police Station- Karagahar, District- Rohtas.
8. Most. Batmati Kuer, wife of late Rajbansh Rai, resident of Village and Post-
Panapur, Police Station- Karagahar, District- Rohtas.
9. Ramanuj Rai son of late Rajbansh Rai, resident of Village and Post-
Panapur, Police Station- Karagahar, District- Rohtas.
10. Jaishankar Rai, son of Late Rajbansh Rai resident of Village and Post-
Panapur, Police Station- Karagahar, District- Rohtas.
11. Satyendra Pandey son of Late Kesho Pandey, resident of Village- Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
12. Bijendra Pandey son of Late Kesho Pandey, resident of Village- Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
13. Jitendra Pandey, son of Late Kesho Pandey resident of Village- Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
14. Rajbansh Pandey, son of Late Bindhyachal Pandey, resident of Village-
Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
16. Ram Pratap Pandey, son of Late Shyam Narayan Pandey, resident of Village-
Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
17. Sita Ram Prasad, son of Late Shiv Pujan Prasad. resident of Village-
Delahuan, Post- Baraki Kharari, Police Station- Karagahar, District- Rohtas.
18. Phula Devi, wife of Sita Ram Prasad, resident of Village- Delahuan, Post-
Baraki Kharari, Police Station- Karagahar, District- Rohtas.
... ... Respondent/s ======================================================
Appearance :
For the Petitioner/s : Mr. Surendra Kumar Choubey, Advocate For the Respondent/s : Mr. Manoj Kumar, Advocate ======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
CAV JUDGMENT
Date : 15-02-2023 Heard learned counsel for the parties.
2. This Civil Miscellaneous Application is directed against the order dated 01.12.2017 passed in T.S. No. 170/13 by the learned Sub Judge-3, Sasaram, Rohtas whereby and where under he has rejected the petition dated 22.01.2014 filed by the petitioners under Order VIII Rule 6 C of Code of Civil Procedure.
3. The facts, in brief relevant for decision of this case, are that the petitioners who are the plaintiffs filed a Title Suit bearing Title Suit No. 170/13 seeking relief inter alia for declaration of their title over the Schedule A property mentioned in the plaint and restoration of their position of the suit property if they have been dispossessed by the defendants during the pendency of the suit.
4. On summon, the defendants/respondents appeared on
14.05.2013 in the case and filed their written statement cum counter claim on 24.09.2013 in which they have opposed the prayer of the plaintiff in the plaint and claimed their title over the lands mentioned as Schedule A property in their written statement cum counter claim. Thereafter on 24.03.2014, the petition dated 28.10.2013 for condonation of delay in filing written statement of defendants/respondents has been rejected by the learned Court below due to not pressed and thereafter again they made an application dated 16.04.2014 for accepting the written statement filed by defendants/respondent Nos. 1 to 10 after condonation of delay in filing written statement which was allowed on 20.06.2014.
5. The petitioners filed a petition dated 22.01.2014 under Order VIII Rule 6 C of Code of Civil Procedure to reject the counter claim filed by the defendants/respondent Nos. 1 to 10 and a rejoinder dated 05.07.2017 filed on behalf of the defendants/respondent Nos. 1 to 10. The learned Court below rejected the petition dated 22.01.2014 filed by the petitioners vide the impugned order dated 01.12.2017 holding that the counter claim of defendants/respondents was already admitted on 20.06.2014.
6. Learned counsel for the petitioners submits that the learned Court below wrongly and illegally dismissed the petition filed by the plaintiffs/petitioners under Order VIII Rule 6 C of the Code for exclusion of the counter claim of the defendants without deciding the objection of the plaintiffs that defendants may file a separate suit because of the fact that the property mentioned in the counter claim was not in any manner related to suit property, as such was not the subject matter of the present suit. Further, it is stated that the learned Court below wrongly and illegally asked the defendants to pay the Court fee on the amount of counter claim.
7. Learned counsel for the petitioners has further submitted that the petition of defendants/respondent Nos. 1 to 10 dated
16.04.2014 was only related to condonation of delay and for accepting the written statement which was admitted on 20.06.2014 but the matter related to admission of counter claim and objection petition of petitioners under Order VIII Rule 6 C of C.P.C. filed by the petitioners on 22.01.2014 was pending which was not decided by order dated 20.06.2014 or prior to depositing the Court fee by defendant/respondent but the learned Court below wrongly rejected the petition of the petitioners on misappreciation that counter claim of the defendants was admitted by order dated 20.06.2014.
8. Lastly, learned counsel for the petitioners submits that the impugned order was passed without giving any valid and cogent reasons for rejection of the petition of the petitioners which is not proper and also not in accordance with law which is liable to be set aside.
9. On the other hand learned counsel for the respondents supported the impugned order and submitted that the Court after appreciating the facts and the law rightly passed the impugned order and the petition of the petitioner is misconceived and liable to be rejected.
10. The provisions with respect to counter claim have been discussed b
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